People v. Hoyt CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS317747
- Trial judge
- Marcella O. McLaughlin
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Truc T. Do, Buchanan
Analysis
The trial court revoked probation and executed the previously suspended sentence, rejecting a request to sentence under Penal Code section 1170, subdivision (b)(6). The Court of Appeal affirmed the judgment after a Wende review found no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Revocation of probation and execution of suspended sentence“The court declined to reinstate her to probation and executed the previously suspended sentence.” | abuse of discretion | not reached | agree with court agree with court |
Imposition of middle term in light of section 1170, subdivision (b)(6)“Did the court err in imposing the middle term in light of section 1170, subdivision (b)(6)?” | de novo | not reached | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when no issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying possible, though not arguable, issues to assist the court in its independent review.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly identifies the Wende/Anders framework and states that the court reviewed the entire record. However, it provides no substantive legal analysis or reasoning for why the specific issues raised (probation revocation discretion and sentencing under § 1170(b)(6)) were not arguable, relying solely on the negative conclusion of the review.
How this analysis was made · dispute it
unusual dispositionAfter Antoinette Hoyt pleaded guilty to attempted pandering, assault by means likely to produce great bodily injury, and petty theft under a plea agreement with a stipulated three-year-eight-month sentence suspended in favor of probation, the trial court, upon her second probation violation, declined to reinstate probation, rejected her request for sentencing under Penal Code section 1170, subdivision (b)(6), and executed the previously suspended sentence. On appeal, counsel filed a Wende brief identifying two possible issues; the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Refusal to reinstate Hoyt on probation after her second violation and execution of the previously suspended sentence“The court declined to reinstate her to probation and executed the previously suspended sentence.” | abuse of discretion | correct | agree with court A decision whether to reinstate probation after an admitted or proven violation is committed to the trial court's discretion, and this was Hoyt's second revocation after having already been reinstated once. The opinion gives no facts about the violation, so the result cannot be independently verified, but nothing in the opinion suggests an abuse of discretion, and the sentence executed was the one the parties stipulated to in the plea agreement. |
Denial of defense request to resentence Hoyt under Penal Code section 1170, subdivision (b)(6) rather than executing the stipulated middle term“The court considered and then rejected a defense request to sentence Hoyt pursuant to section 1170, subdivision (b)(6).” | unclear | correct | agree with court The sentence was imposed and its execution suspended at the original sentencing as part of a stipulated plea; under settled California law, when a court imposes sentence and suspends execution, on revocation it must order that sentence into effect and lacks authority to reduce it. The section 1170(b)(6) request was therefore properly rejected regardless of the merits, and the stipulated term was not subject to the lower-term presumption in any event. The Court of Appeal did not explain this, but the result is correct. |
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 issues before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and file a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound with gaps — The opinion follows the required Wende/Anders procedure, identifies the two possible issues raised by counsel, and reaches a result that is correct because the executed sentence was a stipulated term imposed with execution suspended, which the trial court could not later modify. It does not, however, explain why either possible issue lacks merit or cite the authority (People v. Howard) that resolves the section 1170(b)(6) question, so the reasoning is defensible but minimal.
How this analysis was made · dispute it
record incompleteOpinion
Filed 2/15/23 P. v. Hoyt 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, D080939
Plaintiff and Respondent, v. (Super. Ct. No. SCS317747)
ANTOINETTE HOYT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Marcella O. McLaughlin, Judge. Affirmed. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. Antoinette Hoyt entered into a plea agreement in which she pleaded guilty to attempted pandering (Pen. Code,1 §§ 664/266i, subd. (a)(2); count 2), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 6), and misdemeanor petty theft (§ 484; count 8). The parties 1 All further statutory references are to the Penal Code. stipulated to a sentence of three years and eight months, such sentence to be suspended and Hoyt granted probation for two years. The court suspended sentence and granted probation. Hoyt was later charged with violating probation. She admitted the violation and waived custody credits and was reinstated on probation. Hoyt was again revoked on probation. The court declined to reinstate her to probation and executed the previously suspended sentence. The court considered and then rejected a defense request to sentence Hoyt pursuant to section 1170, subdivision (b)(6). Hoyt filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Hoyt the opportunity to file her own brief on appeal, but she has not responded. DISCUSSION Appellate counsel’s Wende brief includes a reference to possible, but not arguable issues consistent with Anders v. California (1967) 386 U.S. 738 (Anders). These possible issues were considered in evaluating the potential merits of this appeal: 1. Did the trial court abuse its discretion by refusing to reinstate Hoyt on probation? 2. Did the court err in imposing the middle term in light of section 1170, subdivision (b)(6)? We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Hoyt on this appeal.
2 DISPOSITION The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
DO, J.
BUCHANAN, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12