F080890
Cal. Ct. App.Jun 8, 2022Background
- Defendant Glen Edward Maynor and two codefendants committed a string of violent robberies in June 2018 (victims K.A., J.S., and O.E.).
- Charges included conspiracy to commit robbery, carjacking, assault, attempted kidnapping to commit robbery (count 5), and attempted robbery (count 6); two prior strikes found true.
- Jury convicted Maynor of counts 1, 2, 5, and 6; acquitted on completed kidnapping count; convicted of lesser assault on count 3.
- Sentence: consecutive terms producing an aggregate of 54 years to life (two consecutive 27‑to‑life terms); stayed terms for other counts.
- On appeal Maynor challenged (1) sufficiency of evidence for attempted kidnapping to commit robbery, (2) that attempted robbery is a necessarily included offense of attempted kidnapping, and (3) imposition of fines/fees without an ability‑to‑pay hearing. Parties also briefed retroactive application of Assembly Bill No. 518 to sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for attempted kidnapping to commit robbery (count 5) | Evidence shows defendants tried to force O.E. into their vehicle, movement was not merely incidental and would have increased risk of harm | No substantial evidence of intent to move O.E. beyond incidental taking; no asportation occurred | Conviction affirmed; substantial evidence supports attempted kidnapping (intent to move victim into car increased risk beyond robbery) |
| Whether attempted robbery (count 6) is a necessarily included offense of attempted kidnapping (count 5) | Attempted robbery is not necessarily included because attempted kidnapping for robbery has different elements (no requirement of a direct overt act toward robbery) | Attempted robbery is necessarily included and therefore conviction on count 6 must be vacated | Conviction affirmed; attempted robbery is not a necessarily included offense of attempted kidnapping for robbery |
| Whether remand is required under Assembly Bill No. 518 (change to §654 discretion) | Even if AB 518 applies retroactively, remand would be futile because the sentencing court stated it would not have exercised discretion to reduce sentence | AB 518 applies retroactively and requires resentencing/remand for discretion under amended §654 | AB 518 applies retroactively, but remand denied as futile given sentencing court statements and imposed sentence |
| Ability‑to‑pay hearing for fines/fees (Dueñas claim) | Defendant forfeited claim by not objecting at sentencing; no cause to excuse forfeiture | Due process / Eighth Amendment require an ability‑to‑pay hearing before imposing fines/fees | Claim forfeited for failure to object; appellate court declines to reach merits and affirms imposition of the fines/fees |
Key Cases Cited
- Mullins v. People, 6 Cal.App.4th 1216 (1992) (discusses attempted kidnapping liability where intended movement, not completed, would have increased risk of harm)
- Jones v. People, 75 Cal.App.4th 616 (1999) (forcible movement into a vehicle can substantially increase risk of harm and supports kidnapping for robbery)
- Lewis v. People, 43 Cal.4th 415 (2008) (robbery is not a lesser included offense of kidnapping for robbery under the elements test)
- Montoya v. People, 33 Cal.4th 1031 (2004) (elements test for determining whether an offense is necessarily included)
- Robertson v. People, 208 Cal.App.4th 965 (2012) (analysis of §209 subdivision requirements following legislative change)
- Gutierrez v. People, 48 Cal.App.4th 1894 (1996) (remand for resentencing unnecessary where record shows sentencing court would not have exercised discretion differently)
- People v. Superior Court (Lara), 4 Cal.5th 299 (2018) (retroactivity of ameliorative sentencing changes to nonfinal judgments)
- Dueñas v. People, 30 Cal.App.5th 1157 (2019) (ability‑to‑pay hearing and constitutional challenge to fines/fees)