People v. Childers CA4/1

California Court of Appeal · D065818 · 2014-10-10 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD231261, SCD228796
Trial judge: Michael T. Smyth
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Joan K. Irion (author), Richard D. Huffman, Sr., Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:31Z · confidence low

The trial court, on remitter, made a true finding that the defendant committed carjacking while released on bail for a prior felony and reinstated a two-year consecutive sentence enhancement. The Court of Appeal affirmed the judgment after a Wende/Anders review of the record found no error.

Ruling reviewed	Standard	The court	The model
Trial court's true finding on the out-on-bail enhancement (Pen. Code, § 12022.1, subd. (b)) and reinstatement of the two-year consecutive sentence. “The trial court made the true finding the People proved beyond a reasonable doubt the allegation under section 12022.1, subdivision (b) (out-on-bail enhancement) made against Childers, and reinstated the two-year consecutive sentence for that enhancement.”	unclear	not reached	unsure The appellate court conducted a Wende/Anders review and stated it found 'no reasonably arguable appellate issues' and 'no error.' It did not explicitly analyze the sufficiency of the evidence or the waiver issue raised by counsel, nor did it apply a specific standard of review to the trial court's finding. The court simply affirmed the judgment on remitter.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the duty of appointed appellate counsel to review the record for error when no issues are raised, and the court's independent duty to do the same.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues, even if none are found, and allows the court to review the record independently.
relied: People v. Marsden (1970) 2 Cal.3d 118 — Establishes the standard for evaluating a motion for new counsel based on conflict of interest or inadequate representation.

The appellate opinion: sound with gaps — The opinion is procedurally sound in that it follows the Wende/Anders protocol for reviewing a record when counsel raises no specific issues. However, it is a 'sound with gaps' opinion because it fails to explicitly address the two 'possible, but not arguable' issues identified by counsel (waiver of jury trial and sufficiency of evidence) with any specific legal analysis or application of the standard of review, merely stating that no error was found.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

On remand from a prior appeal, the trial court held a hearing, took judicial notice of court records, found true beyond a reasonable doubt that Childers committed carjacking while released on his own recognizance in an earlier felony case (Pen. Code, § 12022.1, subd. (b)), and reinstated a two-year consecutive enhancement. On appeal, appointed counsel filed a Wende/Anders brief, Childers filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
True finding on the section 12022.1, subdivision (b) out-on-bail enhancement and reinstatement of the two-year consecutive sentence, based on judicially noticed court records “The trial court made the true finding the People proved beyond a reasonable doubt the allegation under section 12022.1, subdivision (b) (out-on-bail enhancement) made against Childers, and reinstated the two-year consecutive sentence for that enhancement.”	substantial evidence	correct	agree with court The judicially noticed records show OR release in SCD231261 on December 20, 2010, the carjacking on April 13, 2011, conviction of the carjacking, and a later guilty plea to a felony in the primary case, which satisfies the elements of section 12022.1 (release on bail or OR pending a felony, commission of a secondary felony, and conviction of both). The trial court acted within the remand directions, and nothing in the opinion suggests a defect in the proof.
Trial of the out-on-bail enhancement to the court rather than a jury on remand (counsel's Anders issue of whether Childers knowingly and intelligently waived jury trial on the enhancement) “(1) whether Childers knowingly and intelligently waived his right to a jury trial on his out-on-bail enhancement; and (2) whether sufficient evidence supports the trial court's true finding on the out-on-bail enhancement.”	unclear	correct	unsure The opinion does not describe what waiver, if any, was taken on remand; it notes only that Childers previously appeared prepared to waive jury trial on the enhancements and that on remand he declined to admit and the court took proof. The court's conclusion that the issue is not arguable is plausible, but the opinion recites no record facts about the remand waiver, so I cannot verify it.
Denial of Childers's Marsden motion at the outset of the remand hearing “At the outset of the hearing, Childers made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), which was denied after the court held a separate hearing during which the prosecutor was not present.”	abuse of discretion	correct	unsure The appellate court's independent Wende review of the entire record encompassed this ruling and found no arguable issue, and the opinion confirms the trial court followed the required procedure of a separate hearing outside the prosecutor's presence. The opinion gives no detail on the substance of Childers's complaints, so I cannot independently evaluate the merits.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may file a brief referring to anything in the record that might arguably support the appeal, and the court then decides whether the appeal is wholly frivolous.
relied: People v. Marsden (1970) 2 Cal.3d 118 — A defendant seeking substitution of appointed counsel must be permitted to state the reasons for the request at a hearing.

The appellate opinion: sound with gaps — The opinion follows the standard Wende procedure, identifies the Anders issues counsel flagged, and recites record facts that support the true finding on the out-on-bail enhancement. It does not, however, state what jury waiver occurred on remand or why trial to the court was proper, leaving the first Anders issue resolved without explanation.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 10/10/14 P. v. Childers CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D065818

Plaintiff and Respondent, v. (Super. Ct. No. SCD231261, SCD228796) CHRISTOPHER MARK CHILDERS, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Michael T.

Smyth, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

Christopher Mark Childers appeals from the final judgment entered after the trial court made a true finding that he committed a felony (carjacking; Pen. Code,1 § 215, 1 Statutory references are to the Penal Code unless otherwise specified. subd. (a)) while released on bail or his own recognizance for an earlier felony offense (§ 12022.1, subd. (b)) and reinstated a two-year consecutive sentence on the enhancement, on remitter after remand from our previous nonpublished opinion in this case, People v. Childers, D062971 (Aug. 30, 2013) (2013 Opinion).2 Childers raises no specific issues on appeal, but asks this court to review the entire record to determine if there are any issues which, if resolved in his favor, would result in reversal or modification of the judgment. (People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) Having done so, we find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At trial, Childers was convicted of carjacking (§ 215, subd. (a)) and possession of a firearm (§ 12021, subd. (a)(1)). The jury also found true that Childers personally used a firearm (§ 12022.53 subd. (b)) when he committed the carjacking.3 Childers admitted that he had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), a prior strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12), and a prison prior conviction (§ 667.5, subd. (b)). The information also had alleged Childers committed a felony (carjacking)

while out on bail pending final judgment on an earlier felony offense (§ 12022.1, subd. (b)). However, as noted in the 2013 Opinion, while Childers appeared prepared to 2 On our own motion we take judicial notice of the 2013 Opinion.

3 The firearm possession conviction and enhancement were dismissed after Childers made a new trial motion.

2 waive both his rights to a jury trial and to present evidence regarding the out-on-bail enhancement at the same time as he waived these rights to the other enhancements, the trial court did not ask Childers to admit to the out-on-bail enhancement and sentenced him to an additional two-year consecutive sentence on that enhancement.

Childers appealed contending, in relevant part, that the trial court improperly sentence him on the out-on-bail enhancement. In the 2013 Opinion this court agreed, and reversed the judgment to the extent it included a two-year enhancement to Childers's prison term based on section 12022.1. We remanded the case to the trial court with directions "to make the necessary findings to ascertain if an enhancement under section 12022.1, subdivision (b) is warranted and then to modify the abstract of judgment accordingly." (People v. Childers, supra, D062971.)

On April 14, 2014, the trial court held a hearing after remitter to determine if Childers committed the carjacking while out on bail, as alleged in the underlying information, either through Childers's admission to the enhancement or the making of a true finding after presentation of the requisite proof by the People.4 Childers did not admit the enhancement, and the trial court put the People to its proof.

Pursuant to request of the People, the trial court took judicial notice of various court documents and the jury verdict, which disclosed the following facts. (Evid. Code, §§ 450, 452, subd. (d)(1).) On December 20, 2010, Childers was released on his own 4 At the outset of the hearing, Childers made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), which was denied after the court held a separate hearing during which the prosecutor was not present. 3 recognizance in case No. SCD231261, in which it was alleged he had committed various misdemeanors and felonies.5 On February 4, 2011, Childers failed to appear in court.

On April 15, 2011, Childers was arrested for carjacking (§ 215, subd. (a)), which was committed on April 13, 2011. On January 19, 2012, Childers was convicted of the carjacking offense.

The trial court made the true finding the People proved beyond a reasonable doubt the allegation under section 12022.1, subdivision (b) (out-on-bail enhancement) made against Childers, and reinstated the two-year consecutive sentence for that enhancement.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel mentions as possible, but not arguable, issues (1) whether Childers knowingly and intelligently waived his right to a jury trial on his out-on-bail enhancement; and (2) whether sufficient evidence supports the trial court's true finding on the out-on-bail enhancement.

We granted Childers permission to file a brief on his own behalf. He has not responded.

5 On December 6, 2012, Childers ultimately pled guilty to one of the felonies alleged in case No. SCD231261, possession of controlled substance for sale (Health & Saf. Code, § 11351). 4 A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues. Childers has been competently represented by counsel on this appeal.

DISPOSITION

The judgment on remitter is affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12
People v. Marsden Crim. 14119 · 1970-02-26