People v. Tayborne CA3

Filed 6/27/14 P. v. Tayborne CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C071611

Plaintiff and Respondent, (Super. Ct. No. CRF095538)

v.

ROBERT ANTHONY TAYBORNE, JR.,

Defendant and Appellant.

A jury found defendant Robert Anthony Tayborne, Jr., guilty of possession of methamphetamine and possession of marijuana for sale. The trial court subsequently found true the allegation of a prior strike conviction for active participation in a street gang, a prior prison commitment, and an on-bail enhancement. Defendant was sentenced to eight years four months in state prison.

1

On appeal, defendant contends the trial court abused its discretion by not dismissing his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm the judgment.

FACTS AND PROCEEDINGS

In November 2009, defendant was charged by information with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and forgery (Pen. Code, § 476; unless otherwise stated, statutory references that follow are to the Penal Code). The People further alleged defendant was convicted of a serious or violent felony (i.e., active participation in a street gang) in 2005 (§ 667, subd. (d)), and served a prior term in prison (§ 667.5). In April 2012, the People amended the information, adding a charge for possession of marijuana for the purpose of sale. (Health & Saf. Code, § 11359.) The People also included the allegation that defendant committed this crime while out on bail. (§ 12022.1, subd. (b).) Defendant pleaded not guilty to the charges. Prior to trial, defendant moved the trial court to strike his prior strike conviction. The court denied the motion, acknowledging defendant had a difficult childhood, but noting defendant had engaged in a continuous course of criminal conduct. A jury subsequently found defendant guilty of possessing methamphetamine and possessing marijuana for the purpose of sale; they found him not guilty of forgery. The trial court then found true the enhancement allegations. Prior to sentencing, the Yolo County Probation Department (the Department) issued a report and recommendation regarding defendant’s sentence. The Department recommended defendant be sentenced to an aggregate term of 10 years four months in state prison. In reaching that recommendation, the Department noted defendant’s