Filed 1/17/18 P. v. Taylor CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT KENT TAYLOR,
Defendant and Appellant.
| D072239
(Super. Ct. No. SCD226482) |
APPEAL from an order of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Robert Kent Taylor appeals from a postjudgment order denying his petition to recall his sentence and resentence him to a reduced sentence pursuant to Penal Code section 1170.126.[1]
Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Taylor has not responded to our invitation to file a supplemental brief. After having considered the briefing and having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
As admitted in his plea agreement, Taylor forced his way into an occupied hotel room with the intent to commit robbery and used violence to prevent the occupant from leaving. Based on that admission, on May 26, 2010, Taylor pled guilty in San Diego County Superior Court to first degree burglary (§§ 459, 460) and false imprisonment by violence (§§ 236, 237, subd. (a)). Taylor also admitted to incurring two prior strikes (§§ 667, subds. (b)-(i), 1170.12), and a serious felony conviction (§ 667, subd. (a)(1).) In accordance with the plea agreement, Taylor was sentenced to a term of 55 years to life in prison.
On March 4, 2016, Taylor filed a petition to recall his sentence under the Three Strikes Reform Act (§ 1170.126) and resentence him to a term of 30 years to life.[2] The People opposed the motion, arguing that although Taylor was eligible for resentencing, the court should decline to do so because resentencing Taylor would pose an unreasonable risk of danger to public safety, which is set forth in section 1170.126, subdivision (f) as a ground to deny a petition for resentencing. Taylor took the position that the term "unreasonable risk of danger to public safety" in the Three Strikes Reform Act should be interpreted by reference to the definition of that term in Proposition 47. (§ 1170.18, subd. (c).)
At a hearing held on May 18, 2017, the trial court denied Taylor's petition. The trial court explained that, based on the facts before it, Taylor would likely engage in violent sexually-related activity in the future and thus resentencing him would pose an unreasonable risk of danger to public safety. The trial court also stated that it had determined that the definition of "unreasonable risk of danger to public safety" in Proposition 47 was not applicable to a petition under the Three Strikes Reform Act.[3]
On May 19, 2017, Taylor filed a notice of appeal from the trial court's order denying his petition.
II.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error in accordance with Wende.
Counsel has identified the following issues that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744): (1) whether the trial court erred in failing to apply Proposition 47's definition of unreasonable risk of danger to public safety; and (2) whether the trial court abused its discretion in denying Taylor's petition on the ground that resentencing Taylor would pose an unreasonable risk of danger to public safety.
After we received counsel's brief, we gave Taylor an opportunity to file a supplemental brief, but Taylor did not respond.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue. Taylor has been adequately represented by counsel on this appeal.
DISPOSITION
The order denying the petition for recall of sentence and resentencing is affirmed.
IRION, J.
WE CONCUR:
NARES, Acting P. J.
DATO, J.
[1] Unless otherwise indicated, all further statutory references are to the Penal Code. Section 1170.126 is part of the Three Strikes Reform Act, enacted by the voters as Proposition 36 in November 2012. (People v. Valencia (2017) 3 Cal.5th 347, 350 (Valencia).)
[2] The Three Strikes Reform Act "enacted a procedure governing inmates sentenced under the former Three Strikes law whose third strike was neither serious nor violent, permitting them to petition for resentencing in accordance with Proposition 36's new sentencing provisions. . . . The resentencing provisions provide, however, that an inmate will be denied resentencing if 'the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' . . . Proposition 36 did not define the phrase 'unreasonable risk of danger to public safety.' " (Valencia, supra, 3 Cal.5th at p. 350, citations omitted.)
[3] After the trial court denied Taylor's petition, our Supreme Court in Valencia approved the approach taken by the trial court here and held that Proposition 47's definition of "unreasonable risk of danger to public safety" (§ 1170.18, subd. (c)) does not apply to resentencing proceedings under the Three Strikes Reform Act. (Valencia, supra, 3 Cal.5th at p. 375.)
