In re Juarez

California Court of Appeal Nov 18, 1975 No. Crim. No. 14311Published

Before: Scott

AI Brief

AI-generated · verify before citing

Holding. A trial court's failure to orally pronounce a firearm use enhancement at sentencing does not invalidate the enhancement when the defendant has waived formal arraignment for judgment, as no inference of leniency arises from such silence.

Issues

Whether a trial court's failure to orally pronounce a firearm use enhancement at sentencing renders the enhancement invalid.
Whether a defendant's waiver of formal arraignment for judgment precludes the requirement for an oral recitation of sentencing enhancements.

Disposition. denied

Quotations verified verbatim against the opinion

“We conclude that an inference of leniency need not and should not be drawn from the trial court’s silence regarding the firearm use finding.”

“Failure of the court to recite the matters upon which sentence is imposed was solicited by the defendant by his waiver of formal arraignment.”

“Juarez’s abstract of judgment therefore properly reflects his enhanced sentence resulting from his conviction under Penal Code section 12022.5.”

Opinion

SCOTT, J. Stephen R. Juarez was convicted, after trial by jury, of robbery (Pen. Code, § 211), which was found by the jury to be in . the first [66]degree. In addition, the jury found that Juarez did use a firearm, to wit, a pistol, in the perpetration of the robbery. Juarez’s conviction was affirmed on appeal. (Dist. 2, Div. 2, Crim. 23847.)

Juarez, by his petition for habeas corpus, challenges the legality of his detention for the enhanced punishment imposed for using a firearm in the perpetration of the robbery (Pen. Code, § 12022.5), because of the absence of an oral pronouncement by the sentencing judge imposing the enhanced punishment.

The issue raised here could have been raised on appeal. Generally, habeas corpus will not lie as a substitute for an appeal or as a second appeal. (In re Terry (1971) 4 Cal.3d 911 [95 Cal.Rptr. 31, 484 P.2d 1375]; In re Antazo (1970) 3 Cal.3d 100 [89 Cal.Rptr. 255, 473 P.2d 999].) This court may, however, if there are special circumstances, consider on petition for habeas corpus matters that do not require a determination of fact although they could have been raised on appeal. (In re Wallace (1970) 3 Cal.3d 289 [90 Cal.Rptr. 176, 475 P.2d 208]; In re Bushman (1970) 1 Cal.3d 767 [83 Cal.Rptr. 375, 463 P.2d 727]; In re Black (1967) 66 Cal.2d 881 [59 Cal.Rptr. 429, 428 P.2d 293].)

People v. Mesa (1975) 14 Cal.3d 466 [121 Cal.Rptr. 473, 535 P.2d 337], upon which Juarez principally relies, was decided after the decision on his appeal. Additionally, the Supreme Court has granted a hearing in two cases, People v. Hunt (Cal.App.) and People v. Castellano (Cal.App.), which address themselves to related issues. Under this uncertain state of the law, Juarez can be excused for not having raised in his appeal the issue presented here.

In the case at bench, the record discloses the following exchange at the time of sentencing:

“[The Court]: All right, I have read the probation report in the Juarez case. Is there anything you want to say at this time?

“[Defendant’s Attorney]: There is no legal cause why judgment should not now be pronounced. We will waive formal arraignment for judgment. I will submit it on the probation report.

[67]

In re Juarez

AI Brief

More from California Court of Appeal

Related research

AI Brief