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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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




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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.]).


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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.



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       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




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one year on the prison prior, for a total indeterminate term of 26 years to life in state

prison.

          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).)



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       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




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“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).)




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       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.)




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       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).



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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.



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