Doctrines of invited error and estoppel preclude defendant from complaining that trial court abused its discretion by granting his request to withdraw his plea. Simmons and his codefendant Malbrough were charged with dozens of felonies apiece arising from a series of home invasion robberies they carried out together. Pursuant to a package plea agreement, both pled no contest to 19 felony counts in exchange for 26 years in state prison. However, during the sentencing hearing, Simmons asked to withdraw his plea. The court postponed sentencing so that he could discuss the decision with counsel. When sentencing resumed, Simmons no longer…
Doctrines of invited error and estoppel preclude defendant from complaining that trial court abused its discretion by granting his request to withdraw his plea. Simmons and his codefendant Malbrough were charged with dozens of felonies apiece arising from a series of home invasion robberies they carried out together. Pursuant to a package plea agreement, both pled no contest to 19 felony counts in exchange for 26 years in state prison. However, during the sentencing hearing, Simmons asked to withdraw his plea. The court postponed sentencing so that he could discuss the decision with counsel. When sentencing resumed, Simmons no longer wanted to withdraw his plea, but Malbrough did. When asked why, Malbrough said that he felt pressured into taking the deal. The trial court allowed Malbrough to withdraw his plea. As a result, the prosecutor rescinded the package plea agreement and the case proceeded to trial. A jury convicted both and they were each sentenced to life plus determinate terms of over 100 years. They appealed arguing that the trial court abused its discretion when it granted Malbrough's request to withdraw his plea. Held: Affirmed. Regardless of whether there was good cause under Penal Code section 1018 to withdraw Malbrough's guilty plea, the doctrines of invited error and estoppel prohibit Simmons and Malbrough from challenging the trial court's ruling because it is exactly what Malbrough requested. Furthermore, the trial court acted within its authority under Penal Code section 1192.5, which gives a trial court broad discretion to withdraw its prior approval of a negotiated plea. Coercion is a particular danger in package-deal plea bargains and the trial court expressed concerns about the defendants' "sketchy behavior" surrounding the agreement, which left the court uncomfortable about the plea.
Moving robbery victims, at gun point, from their front yards into their homes is sufficient evidence of aggravated kidnapping. Simmons and Malbrough also argued that there was insufficient evidence to support their convictions for aggravated kidnapping (Pen. Code, § 209, subd. (b)(2)) arising from two of the home robberies because their movement of the victims during the robberies was incidental to the robberies and did not increase the victims' risk of harm. Held: Affirmed. Aggravated kidnapping is committed only "if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (Pen. Code, § 209, subd. (b)(2).) Here, there was sufficient evidence to support the aggravating kidnapping convictions. In both home robberies, Simmons and Malbrough confronted the victims outside their homes, pointed a gun at them, demanded money, then forced them into their homes at gunpoint where they took jewelry and other items. By moving the victims from their front yards into their homes, Simmons and Malbrough decreased the likelihood of detection and therefore increased the risk of harm to the victims. (See People v. Ellis (1971) 15 Cal.App.3d 66, 73 [finding an increased risk of harm to victims for purposes of aggravated kidnapping based on similar facts].)
Trial court properly instructed the jury on aggravated kidnapping despite the fact that it combined CALCRIM and CALJIC instructions. The trial court instructed the jury with CALCRIM No. 1203, which provides, in part, that to prove the defendants committed aggravated kidnapping, the prosecution is required to establish that the defendants moved a person a substantial distance "beyond that merely incidental to the commission of a robbery." The jury was also instructed that "substantial distance means more than a slight or trivial distance" and that "[t]he movement must have substantially increased the risk of physical or psychological harm to the person beyond that necessarily present in the robbery." During deliberations, the jury sent the court a question asking for a definition of "merely incidental." In response, the trial court read CALJIC Nos. 9.54 (kidnapping to commit robbery) and 9.50.1 (outlining factors to consider in determining whether movement of victim was substantial). On appeal, Simmons and Malbrough argued that the instructions insufficiently defined the concept of "merely incidental" movement. The Court of Appeal concluded that the instructions "sufficiently described" the applicable standard, which is a "multifaceted, qualitative evaluation" that should take into account the totality of the circumstances, including the scope and nature of the movement. (People v. Dominquez (2006) 39 Cal.4th 1141, 1151-1152.) Although the CALCRIM user guide states that the CALJIC and CALCRIM instructions should never be used together, the court disagreed with Malbrough's suggestion that mixing the instructions in his case amounted to per se error. Additionally, an error in the instructions actually benefited defendants. The jury was only required to find that the movement increased the risk of harm, not that it substantially increased the risk.
Trial court cannot impose more than one Penal Code section 1202.5 theft fine in the same case. The trial court imposed multiple $10 theft fines against both Malbrough and Simmons pursuant to Penal Code section 1202.5, subdivision (a), and trial counsel did not object. On appeal, Malbrough and Simmons argued that multiple theft fines were improper. Held: All but one fine struck as to each defendant. Penal Code section 1202.5, subdivision (a) permits the imposition of a single $10 fine in a given case no matter how many robbery-related convictions a defendant may receive. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) Because multiple 1202.5 fines are unauthorized, trial counsel's failure to object did not forfeit the issue.
