People v. Gallego CA1/1

Filed 7/29/14 P. v. Gallego CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A139109 v. ERICKA SHIRLEY GALLEGO, (Contra Costa County Super. Ct. No. 5-111698-7) Defendant and Appellant.

Defendant Ericka Shirley Gallego was convicted of kidnapping a child under 14 years of age and first degree burglary after she entered her son’s home when he was away, removed her baby granddaughter, and drove off with the child. Defendant contends the trial court denied her due process by relying on factors outside the scope of the record in exercising its sentencing discretion. We affirm. I. BACKGROUND Defendant was charged in an information filed November 14, 2011, with one count of kidnapping a child under the age of 14 (Pen. Code, §§ 207, subd. (a)/208, subd. (b)) and one count of first degree residential burglary (Pen. Code, §§ 459/460, subd. (a)), with a special allegation that defendant committed the burglary while a nonparticipant was in the residence (Pen. Code, § 667.5, subd. (c)(21)). Defendant, the grandmother of the four-month-old baby victim, broke into her son’s home and took the victim from her bassinet. For months prior to the kidnapping, she had insisted to her boyfriend and her friends she was pregnant, even throwing herself a baby shower. On the day of the kidnapping, defendant packed diapers, a car seat, and

baby clothes into the car of two individuals and paid them a total of $200 to drive her to the victim’s house. Defendant put on latex gloves, disabled the security system, came out of the house running with the victim, and returned to her home. Defendant agreed to submit the matter to court trial on the police reports and the preliminary hearing transcript in exchange for an eight-year maximum sentence. She was found guilty and sentenced to eight years on the charge of kidnapping, with a concurrent term of four years on the charge of burglary. The sole issue on appeal arises from statements the court made in response to defense counsel’s request that defendant be sentenced to the mitigated term or granted probation with conditions for suitable mental health treatment. In addition to arguing defendant did not harm the victim, had no prior criminal record, was of an advanced age, and did not put the victim’s family members through a jury trial, counsel referred to a letter written by the Governor upon her retirement, stating defendant had worked in the school district for 21 years and congratulating her on her accomplishments. Counsel also emphasized defendant needed mental health treatment and argued there was no indication she would receive such treatment in prison. The trial court denied defendant probation and sentenced her to the midterm of eight years. The court noted defendant’s crime involved sophistication and planning and her mental disorder did not affect her ability to judge what she was doing. The court found defendant violated a position of trust as the victim’s grandmother, had selected a particularly vulnerable victim, and was a danger to her family and the community, and it concluded her family would be safer if she was imprisoned. In response to defense counsel’s statement that defendant needed treatment, the trial judge said he was familiar with the prison system and, for women, it was “the most effective part of our prison system, and they do provide [mental health treatment] services.” Further, he stated women’s prisons have much better treatment programs than men’s prisons and are not nearly as crowded. In response to defense counsel’s statement that the Governor had recognized defendant’s accomplishments, the trial judge said he had worked in the