No. G052577.

In re JESSE JAY GERONDALE on Habeas Corpus.

Court of Appeals of California, Fourth District, Division Three.

Attorney(s) appearing for the Case

Tony Rackauckas , District Attorney, David R. Gallivan , Deputy District Attorney, for Plaintiff and Appellant.

Christian C. Buckley , under appointment by the Court of Appeal, for Defendant and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



The Orange County District Attorney (OCDA) appeals from the trial court's order granting Jesse Jay Gerondale's petition for writ of habeas corpus. The OCDA argues the following: the court erred by granting the habeas petition without first issuing an order to show cause (OSC); Gerondale was not in custody on his prior conviction; and Proposition 47 did not apply to the prior prison term.1 Because we agree the trial court erred by granting relief without first issuing an OSC, we need not address the OCDA's other contentions. We reverse the court's order granting Gerondale's petition for writ of habeas corpus.


In 2011, Gerondale pleaded guilty to possession for sale of a designated controlled substance (Health & Saf. Code, § 11375, subd. (b)(1)) (count 1), and admitted he suffered two prior prison terms (Pen. Code, § 667.5, subd. (b), all further statutory references are to the Penal Code). As relevant here, one of the prior prison terms was for grand theft (§ 487), in Orange County Superior Court (OCSC) case No. 08WF1186 (the prior felony conviction). At the sentencing hearing, the trial court imposed and suspended sentence and placed Gerondale on three years formal probation. In June 2014, the trial court terminated Gerondale's probation and sentenced him to five years in prison as follows: three years on count 1 and two one-year terms for the two prior prison terms.

In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47), which made certain drug- and theft-related offenses misdemeanors, unless the defendant was ineligible (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089; § 1170.18).

Gerondale filed a Proposition 47 application. In March 2015, the prior felony conviction was designated a misdemeanor. On July 9, 2015, Gerondale filed a petition for writ of habeas corpus. The petition was a one-page form "For Proposition 47 Resentencing Only."

On the afternoon of July 13, 2015, there was a hearing before Judge Gassia Apkarian in a related case, People v. Campbell (Super. Ct. Orange County, 2012, No. 12WF0369).2 Deputy district attorney (DDA) Nicole Nicholson and Assistant Public Defender (APD) Mark Brown appeared. When Judge Apkarian asked Brown to explain the purpose of the hearing, Brown stated it was "a fairly long process." He explained "we" had meetings, in person and by e-mail, with the OCSC to develop an expedited habeas procedure to grant relief to Campbell and others under Proposition 47. Brown stated the OCDA did not object to the expedited habeas procedure during any of those meetings. He added the OCSC revised its rules and drafted its own habeas petition, which it posted on its website. Brown said that while talking to Nicholson off the record, he was then aware the OCDA was opposed to Campbell's habeas petition both substantively and procedurally. Brown stated that had he known the OCDA was opposed to the expedited habeas procedure, he would not have waited two months while the OCSC developed it. Brown stated he would have filed "a regular habeas petition" and Campbell would not have unnecessarily spent two months in custody. Brown requested Judge Apkarian grant Campbell's habeas petition.

DDA Nicholson opposed granting the habeas petition. Nicholson stated she similarly objected to granting the habeas petition at a hearing before Judge Kazuharu Makino earlier that morning.3 She stated the following: "There [was] no express acceptance of these petitions. We were present at a meeting, we received e-mails, we had our law and motion department working on those, we are opposed to this." She asked for one week to file a response.

Judge Apkarian explained the process by which the OCSC and counsel developed the expedited habeas procedure for Proposition 47 cases. She said the following: "Just to sum up, two months ago there was a meeting, about two months ago there was a meeting where the representatives of the Public Defender's office, the [OCDA's] office, the Alternate Public Defender's office, court staff, and three judges were present. The discussion was to come up with a method in order to have these habeas, these petitions, for writ of habeas corpus heard expeditiously. . . . [¶] . . . [¶] At the time of the meeting, objections were not made by the [OCDA]. Subsequently when Judge [Jonathan] Fish was circulating e-mails and samples for these forms, the [OCDA's] office was privy to all of these e-mails, so was I, there were no objections made in writing, telephonically, orally, verbally, we have never heard of any objections until today, when Judge Makino informed me that in fact the [OCDA] [was] now objecting to the entire petition."

DDA Nicholson replied as follows: "Well, the [OCDA] are objecting to the substantive — we are objecting and opposing it, and Judge Makino informed me if we are objecting substantially, we are objecting to the vehicle that moves us into court." When Judge Apkarian asked whether the OCDA was objecting on both substantive and procedural grounds, Nicholson responded, "Yes." Judge Apkarian added, "So technically you are not opposed to the vehicle, you are opposed to the substance behind the vehicle." Nicholson said, "Yes."

To clarify the record, APD Brown asserted everyone agreed to the expedited habeas procedure because "there was no objection to the ultimate answer[]" and the only issue was "how do we get there." Brown added that although the OCDA certainly had the right to change its position on the substantive law, two months earlier the OCDA agreed to the expedited habeas procedure.

DDA Nicholson stated the following: "And once again the record will be clear we did not technically agree to the procedure, we didn't oppose it, we didn't agree to it, it was a vehicle for these cases to come before the judge who is handling [Proposition] 47, and allow us an opportunity to be heard."

When Judge Apkarian stated the OCDA was "holding" its objection until one of the habeas petitions was filed and now the OCDA had changed its position on the substantive law, DDA Nicholson replied as follows: "I don't think that's accurate, your honor, with all due respect. I don't think there was actually truly a position that was taken. It was there was a discussion of how these cases would come before the court, and at that time we would then make our position heard at that time." Judge Apkarian continued the matter one week to allow the OCDA to file an informal response.

On July 22, 2015, the OCDA filed "opposition" to Gerondale's habeas petition. The next day, there was a hearing before Judge Makino. DDA David R. Gallivan, DDA Nicholson, APD Brown, and Gerondale's counsel, David H. Rim appeared.4 After Brown stated the OCSC created and published an expedited habeas procedure for Proposition 47 cases, Judge Makino stated it was his understanding the "procedure was agreed to" but it now appeared the OCDA objected and the issue before him was whether there was an agreement or whether the OCDA's objection was waived. After Judge Makino said he was not involved in adopting the expedited habeas procedure and did not know whether "they were court-ordered procedures," Brown provided a detailed history of how the procedure developed.

APD Brown stated there was one in-person meeting where Judge Fish, Judge Apkarian, Judge Douglas J. Hatchimonji, OCSC clerks, OCDA representatives, Alternate Defender Derek Bercher, and Brown were present. He stated the judges agreed these defendants were entitled to relief and although he did not remember whether the OCDA representatives agreed, they certainly did not object. He said Judge Hatchimonji suggested "some sort of a habeas petition[]" and people focused on developing an expedited procedure.

APD Brown stated "there was approximately a two-month process" where Judge Fish, doing "the lion's share of the work[]" worked with the OCSC rules committee and developed an expedited habeas procedure. Brown stated that at some point Judge Fish sent an e-mail to the group apologizing for the delay but said he wanted to develop an expedited habeas procedure for all similarly situated defendants to use regardless of who represented them. Brown said that based on a form habeas petition he provided to the court, Judge Fish drafted and circulated by e-mail a form expedited petition for writ of habeas corpus and no one objected. Brown added that because no one objected, Judge Fish sent an e-mail stating, "we are now a go[]" and posted the form habeas petition and rules on the OCSC website.

APD Brown stated he drafted a proposed order and distributed it to the group by e-mail and no one objected. He added the rules required defendants to give 10-days' notice, but the OCDA did not object to the procedure until the matter was set on calendar.

DDA Nicholson responded as follows: "I was present at my first and only meeting where this was brought up by the defense. I never engaged in those discussions. I didn't agree, I didn't oppose. I absorbed the information. I waited to have a day in court to litigate this matter and to bring a representative from my office from law and motion to address it. [¶] There were several e-mails that went back and forth. I never expressly agreed; I also didn't oppose. It was my impression that I would be allowed an opportunity to discuss and object appropriately when this was actually brought before the court in this department. [¶] And if it was a misunderstanding that we were waiving, then that's a misunderstanding. But there's nothing that I have ever said that, yes, I agree to this. And I never said that in the meeting, and I never said it in an e[-]mail."

When Judge Makino attempted to clarify whether her position was she was waiting until the court hearing to raise objections to the expedited habeas procedure, DDA Nicholson replied the following: "If we had any, yes. I was going to address that with my law [and] motion department." Judge Makino asked whether she said that to anyone, and Nicholson answered as follows: "No. We were going to do that when it came to court and address at that time with my law [and] motion person present on the record in court to address any concerns we had on merit or procedure. I never waived or agreed to it at any point."

Judge Makino asked DDA Nicholson whether she was aware the group was creating a habeas petition and expedited process, she agreed she saw the e-mails and the documents. When he said she did not answer the question, Nicholson replied as follows: "There was a procedure that they were discussing with the court on how they're going to get these cases in before a judge in this courtroom doing [Proposition] 47. I saw those petitions. I never agreed to it; I never opposed it." When asked, she repeated she was going to let someone from the law and motion department raise any objections in court.

When Judge Makino asked DDA Gallivan whether "there [was] an objection to the form used to bring this petition for writ of habeas corpus[]" the following colloquy occurred:

"[DDA Gallivan]: No, not to the form. We did have an off-the-record discussion prior to this. I think based on the meetings, I think the way it's been brought before the court, we do not object to the form of it. [¶] But we're asking the court — . . . Brown cited that new rules were promulgated as to how that form would then be litigated. I haven't seen those rules. I went on the judicial website or the [OCSC] website. Those rules are not online. I don't know where those new rules are, how we litigate these habeas petitions. And the form that the Public Defender is using is not the form that's on the website that was approved by the [OCSC]. "[Judge Makino]: I didn't even know there was a form on the website. So I don't know what the difference is between the forms. [¶] Do you have an objection to the forms that are being used by the Public Defender in these writs that are pending right now? "[DDA Gallivan]: At this time, no. At any time. I'm not objecting to the form. My concern is the process moving forward from the form. "[Judge Makino]: Okay. So any procedural objections to the use of this form you're waiving. "[DDA Gallivan]: Only strictly to the use of this form. Correct. "[Judge Makino]: Okay. You waive such as there's no points and authorities; there are no facts other than what is set out in those forms. So any — there's going to be no claim of any deficiency in the facts that are set forth. There's going to be no claim that there's a lack of authority set forth. "[DDA Gallivan]: No. We would be challenging that. We're just not objecting to the form they used. "[Judge Makino]: Well, part of the form was that none of that was required. You're saying it's okay to use the form but the information provided on the form is deficient. "[DDA Gallivan]: Deficient in the sense I don't think it gives the court enough information to grant the relief asked for. If they want to use a form that this court accepts, and it doesn't set forth enough information to convince this court to grant the relief, then I'm certainly going to object to that form. "[Judge Makino]: Okay. To me it sounds like you are objecting because you're going to say, well, the form sets forth insufficient facts so that the court should just deny it on its face without any further hearing necessary on the merits of whether or not people in this circumstance are allowed any relief because there's not sufficient facts or authority set forth in the original petition. "[DDA Gallivan]: But if the court was inclined — if the court is inclined to find that we conceded the issue as to the form, that's why we provided substantive argument. We think it should be done on [a] substantive claim as well. "[Judge Makino]: Here's what I don't want. I don't want someone to say, oh, we agree to this form, but by the way, if they win, we're going to say the information in the form is insufficient. "[DDA Gallivan]: I understand. "[Judge Makino]: Okay. So that's what I'm trying to find out. I mean is your position use of this form provides insufficient information to grant relief? "[DDA Gallivan]: Then my answer is yes. "[Judge Makino]: Okay. Well, then the form is not going to work because the form obviously does not comply with the requirements of a writ of habeas corpus in the traditional formal understanding of what a writ of habeas corpus is. "[DDA Gallivan]: And the reason we're here is if the court had found that I forfeited my ability to make that objection, then we were prepared to go on the merits. But we are objecting to the form. "[Judge Makino]: Okay. Well, . . . Brown, what do you want to do? Because if you win, they're going to say, okay, the petitions were not sufficient on their face, they should have been summarily denied. So if you win, you're going to face that issue upon any appellate review. "[APD Brown]: I'm prepared to face that issue on appellate review because I did comply with the court's procedures. "[Judge Makino]: Okay. Well, I understand you complied. But any court of appeal can say the court had no authority to require or impose on any party a waiver of the requirements on a writ of habeas corpus. So even if it's court ordered, I don't think that would solve that problem. [¶] So if a party doesn't waive it, I don't think the court could basically order a waiver. So but if you want — if you're satisfied with it and you're willing to face it on appeal, I don't have a problem with that. "[APD Brown]: I'm satisfied and willing to face it on appeal."

There was a discussion about incorporating by reference the points and authorities from the lead case, People v. Campbell (Super. Ct. Orange County, 2012, No. 12WF0369), to this case. DDA Gallivan objected "because we're still objecting on procedural grounds before we get to the substantive." After Gerondale's defense counsel indicated he wanted to file a new writ, and Judge Makino said that would trigger the 10-day rule, Gallivan inquired where the 10-day rule was posted. APD Brown replied, "It was in an e[-]mail sent to . . . [DDA] Nicholson." Nicholson said, "And it wasn't agreed to or opposed either." After brief argument, Gallivan withdrew his objection and stipulated to the proposed incorporation by reference.

Judge Makino ruled Gerondale and others were entitled to relief because under Proposition 47 any felony conviction that is designated as a misdemeanor is "a misdemeanor for all purposes," although it was "a very close call." DDA Gallivan objected Judge Makino did not address the OCDA's procedural objection, and Judge Makino stated defendants said they were willing to risk reversal on appeal. After Gallivan stated there were other issues that could have been briefed had the trial court issued an OSC, Judge Makino disagreed opining the one legal issue was clear. Gallivan stated he would have preferred to present his argument in a return after issuance of an OSC. Judge Makino replied, "That would probably be true had this whole procedure not been agreed to because in my view, the whole procedure basically excluded an OSC." When Gallivan asked whether Judge Makino was finding the OCDA agreed to the expedited habeas procedure, Judge Makino responded, "You waived any defects —." Gallivan said, "No, we didn't."

Judge Makino explained the OCDA waived any defects regarding "using the form[]" and it would have to argue before the appellate court whether that included waiving any defects to the OSC requirement. DDA Gallivan stated that although he initially did not object to the habeas form, he did ultimately object to it and he wanted his objection to be clear. Judge Makino said he would have to review the record. Gallivan contended he wanted it to be clear he objected to the habeas form and the expedited process. He asserted Judge Makino was required to rule on the procedural argument and he could not rule on the substantive argument "because the [OCDA has] never been ordered to show cause."

After DDA Gallivan disputed the OCDA waived any objection concerning the expedited habeas procedure, the following colloquy occurred:

"[Judge Makino]: Well, I think you're going to have to discuss that with the Court of Appeal based on what the record is in here about what you said before the ruling was made because once a ruling is made, all these arguments make no difference. The ruling has been made. "[DDA Gallivan]: Is the court — then I guess I'm asking the court what is the court's ruling on the procedural aspects of any objections? "[Judge Makino]: I have no further ruling. "[DDA Gallivan]: I don't believe the court has made a ruling, frankly, on the procedural aspects. "[Judge Makino]: Okay. Well, I don't think I have to make a ruling. So you can take that up with the Court of Appeal. "[DDA Gallivan]: If the court doesn't make a ruling, how can the Court of Appeal review the lack of a ruling? "[Judge Makino]: Well, I think you have to ask them. Okay? That's it."

After a short discussion regarding the appropriate order, DDA Gallivan contended the appropriate remedy was resentencing and not a reduction. Judge Makino disagreed, explaining he was ruling on a habeas petition and not a Proposition 47 petition. When Gallivan continued to object, Judge Makino said he could also take that up with the Court of Appeal.

In a written order the same day, the trial court granted Gerondale's habeas petition, vacating the one-year sentences on Gerondale's two prior felony convictions. The court ordered his recalculated sentence was four years.

At a hearing in a related case on August 3, 2015, DDA Dominic Bello voiced his numerous objections to the expedited habeas procedure, including that Judge Makino could grant relief without issuing an OSC. Before he granted the petition, Judge Makino stated, "Well, the procedural aspects, as before in the other writs, I consider them waived." (Italics added.)


The OCDA argues the trial court erred by granting relief without first issuing an OSC. Thompson contends the court did not err for the following reasons: the OCDA waived the right to file a return because it did not object to the expedited habeas procedure; and the OCDA had a meaningful opportunity to litigate the pure question of law. For the reasons stated in People v. Campbell (May 15, 2017, G052575) ___ Cal.App.5th ___, we agree with the OCDA that the court erred without first issuing an OSC. We reverse and remand the matter.


The order is reversed and the matter is remanded.

MOORE, J. and IKOLA, J., concurs.


1. This issue is currently pending before the California Supreme Court in People v. Valenzuela (2016) 244 Cal.App.4th 692 (Valenzuela), review granted March 30, 2016, S232900.
2. In an order dated June 17, 2016, this court granted Gerondale's request for judicial notice of the habeas petition's points and authorities and the informal response in OCSC case No. 12WF0369. On our own motion, we take judicial notice of the following: in OCSC case No. 12WF0369, the reporter's transcript of the proceedings on July 13, 2015; and in OCSC case No. 12CF0271, the reporter's transcript of the proceedings on August 3, 2015. (Evid. Code, §§ 452, subd. (d) [judicial notice may be taken of court records], 459.)
3. At the hearing, Nicholson objected to the habeas petition, and Judge Makino transferred the habeas petition to Judge Apkarian for that afternoon.
4. Judge Makino noted there were 11 similarly situated defendants, and DDA Dominic Bello and another deputy public defender appeared. Judge Makino stated his ruling on the procedural issue applied to all similarly situated defendants.


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