Filed 4/29/16 P. v. Taylor CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E065107
v. (Super.Ct.No. RIF139865)
TANYA FELICIA TAYLOR, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Tanya Felicia Taylor, in pro. per.; and Richard Schwartzberg, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Tanya Felicia Taylor appeals from an order denying her
petition for resentencing and to reduce her current offenses to misdemeanors under the
1 Safe Neighborhoods and Schools Act (Proposition 47). (Pen. Code, § 1170.18.)1 We
find no error and affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND2
A. Present Offenses
On October 29, 2007, defendant entered a business called “Check Cashing” and
attempted to cash a check in the amount of $150,000. The check was made payable to
“Tanya Taylor” (defendant) from the “Valley Queen Cheese Factory.” Defendant
claimed the check was for a discrimination claim against a company she had worked for
about six years earlier.
Police were subsequently alerted. Riverside County Sheriff’s Deputy Anthony
Gannuscio responded to the call. Defendant told him that she was trying to cash the
$150,000 check awarded to her for a discrimination claim.
Investigation revealed that defendant had never worked for Valley Queen Cheese
Factory and that company had never been the subject of any discrimination litigation.
1 All future statutory references are to the Penal Code unless otherwise stated.
2 The factual and procedural background is taken from this court’s nonpublished opinion affirming the denial of defendant’s petition to recall her sentence under the Three Strikes Reform Act of 2012, added by Proposition 36 (as approved by voters, Gen. Elec. (Nov. 6, 2012) (see People v. Taylor (Feb. 27, 2015, E059227) [nonpub. opn.]). We note that this court affirmed defendant’s current convictions in defendant’s prior appeals (see People v. Taylor (July 31, 2009, E046225) [nonpub. opn.] and People v. Taylor (Mar. 8, 2011, E050082) [nonpub. opn.]).
2 The check in question was fraudulent, and the company had problems with fraudulent
checks.
B. Prior Convictions
Defendant’s criminal history, excluding her prior strike convictions, includes
offenses for misdemeanor battery (§ 243, subd. (e)) in 1997, misdemeanor false
impersonation (§ 529) in 1998, and misdemeanor forgery (§ 475, subd. (a)). In each of
those cases, defendant was granted probation along with a jail commitment.
From November 25, 1998 to December 20, 1998, defendant participated in a series
of armed robberies; gun shots were fired during seven of them. Defendant was the
getaway driver for these robberies. She was on parole for about a year and a half for
these robberies when she committed the current offenses.
Defendant was arrested on December 21, 1998, along with the two male suspects.
She was apprehended while attempting to cash a large number of the lottery tickets stolen
the previous day. During the investigation, officers discovered that defendant had used
her vehicle to transport the armed robbers and was the getaway driver. Defendant shared
the proceeds from the robberies with the male suspects.
On December 10, 2000, defendant was convicted of multiple serious felonies,
including one count of attempted robbery (§§ 664, 211), 15 counts of robbery (§ 211),
one count of assault with a firearm (§ 245, subd. (a)(2)), and three counts of assault with
a semiautomatic firearm (245, subd. (b)), resulting in a sentence of 14 years in state
prison.
3 Defendant served about six years in state prison before she was released on parole
on May 12, 2006. Defendant violated parole on October 29, 2007, when she committed
the instant offenses.
C. Procedural Background of the Current Offenses
In a bifurcated proceeding, a jury found defendant guilty of one count of second
degree burglary (§ 459) (count 1) and one count of possession of a check with the intent
to defraud (§ 475, subd. (c)) (count 2). Defendant subsequently admitted having
sustained 20 prior strike convictions within the meaning of sections 1170.12 and 667 and
one prior prison term within the meaning of section 667.5. On May 16, 2008, the trial
court dismissed 19 of defendant’s prior strikes and sentenced her to a total term of seven
years in state prison.
In the first appeal, the People appealed, arguing the trial court abused its discretion
in granting the motion to strike 19 of the prior strike convictions pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). (§ 1238, subd. (a)(10).) We
agreed with the People, reversed the ruling, and remanded the matter to the trial court to
resentence defendant (People v. Taylor, supra, E046225).
The resentencing hearing was held on January 8, 2010. After reviewing the
supplemental Romero motion and hearing argument from counsel, the trial court declined
to strike any of the 19 prior strike convictions. The court then sentenced defendant to 25
years to life on count 1; 25 years to life on count 2, stayed pursuant to section 654; and
4 one year on the prison prior, for a total indeterminate term of 26 years to life in state
Defendant subsequently appealed, arguing her 26-year-to-life term constituted
cruel and unusual punishment in violation of the state and federal Constitutions. In an
unpublished opinion filed on March 8, 2011, we rejected defendant’s contention and
affirmed the judgment (People v. Taylor, supra, E050082).
On November 6, 2012, the electorate passed the Three Strikes Reform Act of
2012, added by Proposition 36 (as approved by voters, Gen. Elec. (Nov. 6, 2012))
(the Reform Act). (§ 1170.126.) Among other things, this ballot measure enacted
section 1170.126, which permits persons currently serving an indeterminate life term
under the “Three Strikes” law to file a petition in the sentencing court seeking to be
resentenced to a determinate term as a second striker. (§ 1170.126, subd. (f).) If the
trial court determines, in its discretion, that the defendant meets the criteria of
section 1170.126, subdivision (e), the court may resentence the defendant. (§ 1170.126,
subds. (f), (g).)
Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is
eligible for resentencing if he or she “is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or
subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).)
5 On December 4, 2012, defendant wrote a letter to the Riverside County Public
Defender’s office inquiring as to how she could seek resentencing under the Reform Act.
On December 14, 2012, the trial court appointed a public defender to represent defendant,
notified the district attorney, and set a hearing for the following month. The public
defender who had represented defendant at her trial and at her resentencing hearing was
assigned to represent defendant.
In January, February, and March 2013, five hearings in defendant’s absence were
held in regard to defendant’s petition. On May 23, 2013, the prosecutor informed the
court that defendant’s public defender had declared a conflict. The court thereafter
appointed another public defender to represent defendant.
The trial court heard defendant’s petition to recall her sentence under
section 1170.126 on June 27 and July 19, 2013. At that time, the court reviewed
documentary evidence submitted by the parties. When filing her petition, defendant
had submitted various prison records documenting her accomplishments and behavior
while incarcerated. While these records showed various achievements, they also
revealed numerous and repeated rule violations and infractions. In addition, defendant
had submitted two institutional “laudatory chrono” reports (“chronos”) documenting her
behavior purportedly from two different correctional officers, praising her for her
exemplary behavior and affirming that she was prepared to reenter society. These
“chronos” were provided by defendant personally to defense counsel. Because these
6 “chronos” were different from defendant’s overall behavioral history while in prison, the
prosecutor suspected fraud.
At the petition to recall hearing, the court also heard testimony from the two
correctional officers who had allegedly authored the “chronos.” Both of the officers
testified that they had never issued the “chronos” on behalf of defendant; that they had
never signed the “chronos”; and that the “chronos” were fake. The court also heard
testimony from two inmates that had been housed with defendant. The inmates claimed
that defendant had asked them to ask the correctional officer for defendant’s “chronos.”
The court also heard testimony from defendant. Defendant claimed that she had no
knowledge the “chronos” were fraudulent. She explained that she had asked the
correctional officers for them; that they had arrived in her cell some time later; and that
she had assumed the “chronos” came from the correctional officers since she had asked
the officers for them.
The court thereafter questioned defendant. During the colloquy between
defendant and the court, defendant acknowledged that she did not have any positive
“chronos” from correctional officers; that she had many run-ins with the officers for
cussing at them and arguing with them. That colloquy also enumerated many rules
violations and infractions committed by defendant including instances of mutual
combats, numerous failures to report to her job assignments, failures to participate in
rehabilitative programs, interferences with prison head counts, fighting, disobeying
orders, and falsification of documents. Defendant had presented a forged pass from a
7 correctional officer who had not been working on the date it was issued to see a
counselor; she had also forged a document for appeal in the prison system.
Following argument from counsel, the court denied defendant’s petition. The
court observed that defendant’s recalcitrant behavior in prison showed her immaturity
and lack of insight and found that defendant’s attempt to defraud the court by submitting
the fake “chronos” in support of her petition demonstrated a calculated and deliberate
willingness to deceive the court for her own purposes. In light of the circumstances, the
court concluded that defendant continued to pose a substantial danger to public safety and
that although defendant may not commit a violent crime, the court had no doubt
defendant would continue her pattern of manipulative behavior thereby constituting a
substantial risk of financial devastation to others.
Defendant appealed from that order on July 23, 2014, arguing the trial court erred
in denying her section 1170.126 petition to recall her sentence. In an unpublished
opinion filed on February 27, 2015, we rejected defendant’s contentions and affirmed the
judgment (People v. Taylor, supra, E059227).
On November 4, 2014, voters enacted Proposition 47. It went into effect the next
day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47
classifies as misdemeanors certain drug- and theft-related offenses that previously were
felonies or “wobblers,” unless they were committed by certain ineligible defendants.
(§ 1170.18, subd. (a).)
8 Proposition 47 also included a provision that allows certain offenders to seek
resentencing. Defendants who are serving a sentence for a felony that would have been a
misdemeanor had Proposition 47 been in effect at the time of the offense may file a
petition for recall of sentence. (§ 1170.18.)
On March 16, 2015, defendant, through counsel, filed a petition for resentencing
under section 1170.18. On March 17 and July 9, 2015, the People filed responses
opposing resentencing on various grounds. Specifically, the People argued that
defendant was ineligible because defendant entered a bank, not a “commercial
establishment” within the meaning of section 459.5, and tried to cash a fraudulent check
in the amount of $150,950.20. In the alternative, the People asserted that defendant
posed an unreasonable risk of danger to public safety.
Following a hearing on November 20, 2015, the trial court denied defendant’s
section 1170.18 petition, finding the loss exceeded $950.
On December 31, 2015, defendant filed a timely notice of appeal.
II
DISCUSSION
After defendant appealed, upon her request, this court appointed counsel to
represent her on appeal. Counsel has filed a brief under the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a
statement of the case, a summary of the facts and potential arguable issues, and
requesting this court to conduct an independent review of the record.
9 We offered defendant an opportunity to file a personal supplemental brief, and
she has done so. In her supplemental brief, defendant purports to challenge her current
convictions and asks this court to take into consideration section 1385. She asserts
that the check “was one of those check scams,” the check was never cashed or signed,
there was no harm to the business owner, and she has not been convicted of a “super-
strike.” She further reiterates arguments made in her last appeal from the denial of the
section 1170.126 petition, such as the judge who had initially sentenced her should have
heard her petitions. Finally, she makes contentions relating to the unreasonable risk of
danger to public safety component of section 1170.18, believing the court denied her
petition because she posed an unreasonable risk of danger. Defendant’s arguments are
without merit.
As previously noted, on November 4, 2014, voters approved Proposition 47,
which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085,
1089.) Proposition 47 reduced certain drug- and theft-related crimes from felonies or
wobblers to misdemeanors for qualified defendants and added, among other statutory
provisions, section 1170.18. (People v. Contreras (2015) 237 Cal.App.4th 868, 889-
890.) Section 1170.18 creates a process through which qualified persons previously
convicted of crimes as felonies, which would be misdemeanors under the new definitions
in Proposition 47, may petition for resentencing. (See generally People v. Lynall (2015)
233 Cal.App.4th 1102, 1108-1109.)
10 Specifically, section 1170.18, subdivision (a), provides: “A person currently
serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under the act that added this section (‘this act’)
had this act been in effect at the time of the offense may petition for a recall of sentence
before the trial court that entered the judgment of conviction in his or her case to request
resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and
Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those
sections have been amended or added by this act.” Thus, in order to be eligible for
resentencing, defendant must be a person “who would have been guilty of a
misdemeanor” if Proposition 47 had been in effect at the time of his offense. (§ 1170.18,
subd. (a).)
Section 1170.18, subdivision (b), states: “Upon receiving a petition under
subdivision (a), the court shall determine whether the petitioner satisfies the criteria in
subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner’s
felony sentence shall be recalled and the petitioner resentenced to a misdemeanor
pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or
Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those sections have been
amended or added by this act, unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
In exercising its discretion as to whether a defendant poses an unreasonable risk, a
trial court is authorized to consider, among other things, defendant’s criminal conviction
11 history and any other relevant evidence. (§ 1170.18, subds. (b)(1)-(b)(3); see People v.
Shabazz (2015) 237 Cal.App.4th 303, 310, fn. 3.) “ ‘ “Unreasonable risk of danger to
public safety” ’ ” is defined in section 1170.18, subdivision (c), thusly, “ ‘An
unreasonable risk that the petitioner will commit a new violent felony within the meaning
of [section 667, subdivision (e)(2)(C)(iv)].’ ” (See People v. Smith (2015) 234
Cal.App.4th 1460, 1468-1469.)
Defendant was convicted of a violation of section 459, which provides, “Every
person who enters any . . . building . . . with intent to commit grand or petit larceny or
any felony is guilty of burglary.” Proposition 47 created the new crime of “shoplifting,”
a misdemeanor offense that punishes certain conduct that previously would have
qualified as a burglary. Now codified at section 459.5, the statute added by the initiative
provides: “(a) Notwithstanding Section 459 [the burglary statute], shoplifting is defined
as entering a commercial establishment with intent to commit larceny while that
establishment is open during regular business hours, where the value of the property that
is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).” By
its terms, section 459.5 did not redefine second degree burglary; that new statute is
limited to entry into a commercial establishment during regular business hours with the
intent to commit larceny under $950. Here, defendant was ineligible as a matter of law
because she attempted to cash a fraudulent check in an amount greater than $950.
Defendant was also convicted of willfully and unlawfully possessing a
completed check with the intent to defraud in violation of section 475, subdivision (c).
12 Proposition 47 reduced certain types of forgeries, including forgery by check pursuant to
section 475, as long as the value of the check does not exceed $950. (§ 473, subd. (b).)
Again, in the present matter, defendant was ineligible as a matter of law because the
value of the check exceeded $950.
Defendant’s attempts to relitigate the issues raised in her prior appeals is
unavailing. The only issue before the trial court in the instant appeal was whether
defendant was eligible to be resentenced under section 1170.18. None of
defendant’s contentions relate to this narrow issue. The trial court denied defendant’s
section 1170.18 petition, finding she was ineligible solely because the loss exceeded
$950. The trial court did not rule in the alternative, as defendant purports to believe, i.e.,
whether she posed an unreasonable risk of danger to public safety.
Moreover, “ ‘[t]he rule of “law of the case” generally precludes multiple appellate
review of the same issue in a single case.’ ” (In re Rosenkrantz (2002) 29 Cal.4th 616,
668.) “ ‘[A] question presented and decided by an appellate court becomes thereafter the
law of the case and . . . the rule is binding on the appellate court if the case again comes
before it after having gone down to the lower court for further proceedings, the facts on
the second appeal being the same as on the first. The reason of the rule is apparent. This
court having declared the law, and the parties and the court below having acted upon it,
as a matter of policy, the law as thus declared and acted upon, whether right or wrong,
cannot afterward be changed. But for this salutary rule, litigation might go on
indefinitely[.]’ [Citation.]” (People v. Neely (1999) 70 Cal.App.4th 767, 782.)
13 “Application of the rule is now subject to the qualifications that ‘the point of law
involved must have been necessary to the prior decision, that the matter must have been
actually presented and determined by the court, and that application of the doctrine will
not result in an unjust decision.’ [Citations.]” (People v. Shuey (1975) 13 Cal.3d 835,
842.) Here, several of the identical issues defendant asserts in her supplemental brief
were asserted in either the first, second, or third appeals, and those issues are based on the
same law and facts.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the entire record for potential error and find no arguable error
that would result in a disposition more favorable to defendant.
III
DISPOSITION
The order denying defendant’s Proposition 47 petition for resentencing and to
reduce her current convictions to misdemeanors is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur:
HOLLENHORST J.
McKINSTER J.