Opinion
C091091
07-06-2020
THE PEOPLE, Plaintiff and Respondent, v. ALLEN DEE TAYLOR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F05569)
This case returns to us following remand to the trial court to exercise its discretion as to whether to strike defendant Allen Dee Taylor's five-year prior serious felony enhancement under Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2), which was effective on January 1, 2019, and the associated amendments to Penal Code sections 667(a) and 1385(b); unless otherwise stated, statutory section references that follow are to the Penal Code. These amendments allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purpose. At resentencing, the trial court declined to strike the enhancement.
Appointed counsel for defendant asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)
With respect to our review of the record in this case, appellate counsel has filed a motion requesting we take judicial notice of the original record and court file in the earlier appeal (C080968). We treated the motion as a motion to incorporate by reference the record in case No. C080968 and granted that motion.
After reviewing the record, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
We relate the following factual and procedural background as delineated in our earlier opinion.
"Defendant and Darlene became domestic partners in 1996. In 2014, they lived with five children, all under the age of 10. In August 2014, defendant and Darlene got into an argument. Defendant was acting like he was coming down from a high, paranoid, and agitated. Darlene threatened to leave and put the children in the car. Defendant stopped her and they all went back into the house. At approximately 1:00 a.m., defendant called 911 and hung up without speaking to the dispatcher. When the dispatcher called back, Darlene told her the police were not needed.
"Pursuant to sheriff's department policy, Deputies Chaussee and Spurgeon responded to the scene. Darlene answered the door and defendant was on the couch. Defendant appeared agitated and repeatedly asked the deputies why they were there. Darlene told the deputies she wanted to leave with the children because defendant was high on methamphetamine and defendant was preventing her from doing that. Spurgeon offered to stand by so she could safely pack and leave. Darlene accepted and went to pack her things.
"Defendant began yelling he and would not let Darlene and the children leave without him. He picked up a screwdriver with a 12-inch blade. Spurgeon drew his weapon, pointed it at defendant, and repeatedly ordered him to drop the screwdriver.
"Defendant grabbed Darlene and said, 'If you don't go away, I'm going to hurt her.' He held her in front of him, alternating between pointing the screwdriver at her neck and her side. Spurgeon called for backup. Defendant made various comments to the deputies, including saying they better call for backup because 'it's going to go down like this.' He continued to have his arm around Darlene's neck, holding the screwdriver in his right hand against her neck. He held her in front of him with the screwdriver at her neck for about 20 minutes. At one point, he yelled, 'If you don't shut up, I'm going to fucking kill you.' Darlene yelled at him to drop the screwdriver and that he was hurting her. She screamed and pleaded with defendant to let her go, and yelled several times, 'He's going to kill me.' Despite Darlene's and the deputies' requests, defendant refused to release Darlene.
"As more deputies arrived, defendant positioned himself and Darlene between the deputies and the children. It appeared to Chaussee that defendant was using Darlene as a shield. Eventually the deputies rushed into the apartment and tackled defendant. He struggled with them, was tasered, then restrained.
"At trial Darlene denied defendant had held her against her will. She denied he pointed the screwdriver at her neck or stomach, that he held her in a choke hold, that he threatened to hurt anyone, or threatened to kill her. She claimed she had been afraid of the situation, but not that defendant would hurt her.
"Defendant had a previous misdemeanor domestic violence conviction in 2007. Darlene had also obtained domestic violence restraining orders against defendant on two occasions: one in 2007 after he choked her and she escaped to her mother's house; and one in 2010 after he struck and threatened to hit her with a bottle.
"An information charged defendant with false imprisonment of Darlene for purposes of protection from arrest (§ 210.5--count 1), false imprisonment of the children by violence or menace (§ 236--count 2), assault with a deadly weapon on Darlene (§ 245, subd. (a)(1)--count 3), making criminal threats to Darlene (§ 422--count 4), and child endangerment (§ 273a, subd. (a)--count 5). The information also alleged that defendant used a deadly weapon during the commission of counts 1, 2, 4, and 5 (§ 12022, subd. (b)(1)), had been convicted of one serious felony (§§ 667, subds. (b)-(i), 1170.12), and had served one prior prison term (§ 667.5, subd. (b)).
"The jury found defendant guilty of the lesser offense of false imprisonment by violence or menace in count 1 (§ 236), guilty of the lesser offense of false imprisonment, a misdemeanor, in count 2 (§ 236), and guilty as charged in counts 3 through 5. The jury also found the weapons use enhancement alleged in count 1 true, but the remaining weapons use enhancements not true. In bifurcated proceedings, the trial court found the serious felony and prior prison term enhancements true.
"The trial court sentenced defendant to state prison for 23 years eight months as follows: the upper term of 12 years for count 5, plus a consecutive term of 16 months for count 1, plus a consecutive term of two years for count 3, plus a consecutive term of 16 months for count 4. The court also sentenced defendant to one year on the weapons use enhancement alleged in count 1, five years on the serious felony enhancement, and one year on the prior prison term enhancement. The court imposed and stayed defendant's sentence on count 2 pursuant to section 654." (People v. Taylor (July 2, 2019, C080968) [nonpub. opn.].)
We affirmed the judgment of conviction on appeal, but remanded for resentencing on a number of matters, including to allow the trial court to exercise its sentencing discretion under sections 1385 and 667, subdivision (a) to strike or dismiss the prior serious felony enhancement. (People v. Taylor, supra, C080968.)
At resentencing, the trial court heard and considered the parties arguments. The trial court noted defendant's long history of violence; his probationary status at the time of the offense; his conduct in this case, including his four children who were victims and put at risk, and the trauma inflicted upon the children in witnessing this situation. The trial court also considered the age of the prior, defendant's continuing criminal conduct, and his character and prospects that his behavior would change. After considering all of these factors, the trial court determined it was appropriate to impose the additional five-year term on the prior serious felony enhancement.
The trial court resentenced defendant to an aggregate term of 18 years eight months in state prison. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, the trial court struck all the fines and fees, except for direct victim restitution. The trial court asked if anyone objected or wanted to be heard on the Dueñas issue, and the People did not respond or object to the fines being stricken under Dueñas. The trial court later stated, "I will reimpose the victim restitution and fines nunc pro tunc back to the date of the sentencing." The trial court previously imposed a $200 court operations assessment (§ 1465.8, subd. (a)) and a $150 conviction assessment (Gov. Code, § 70373). The abstract of judgment reflects a $200 court operations assessment (§ 1465.8, subd. (a)) and a $150 conviction assessment (Gov. Code, § 70373), but no section 1202.4 restitution fine.
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
KRAUSE, J.