California Court of Appeal Aug 17, 2020 No. E072088Unpublished
Filed 8/14/20 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E072088
v. (Super.Ct.No. RIF1705016)
DANIEL TAYLOR, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. William S. Lebov, Judge.
(Retired judge of the Yolo Super. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Affirmed with directions.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda
E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury convicted defendant and appellant Daniel Taylor of four counts of robbery
for his participation in separate robberies of a Sprint store (counts 4 & 5) and a Verizon
store (counts 1 & 2) and one count of leading the police on a highspeed chase after the
Verizon store heist (count 3). The jury found true firearm enhancement allegations for
each robbery count, and defendant admitted he suffered prior convictions, including two
strikes. The trial court dismissed one of defendant’s strike priors in the interest of justice
and sentenced him to state prison for 25 years four months.
On appeal, defendant argues his convictions on counts 4 and 5 must be reversed
because his trial attorney rendered ineffective assistance of counsel by not objecting
when the prosecutor introduced testimony of an investigating officer who identified
defendant, from a video, as one of the Sprint store robbers. In addition, defendant
contends the trial court erred during sentencing by imposing full one-year terms for the
gun enhancements tied to subordinate counts (counts 2, 4, & 5), instead of one-third the
term, and the court erred by imposing certain fines and fees without first determining his
ability to pay, as mandated by People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We conclude defendant’s trial attorney provided effective assistance of counsel by
not interposing a futile objection to properly admitted lay witness testimony identifying
defendant as one of the robbers of the Sprint store and, Dueñas error during sentencing, if
any, was harmless beyond a reasonable doubt. The People concede, and we agree, the
trial court erred by imposing full one-year terms for the firearm enhancements tied to
subordinate counts. We will modify the sentence on those enhancements and affirm the
judgment as modified.
2
I.
FACTS AND PROCEDURAL BACKGROUND1
On the afternoon of October 19, 2017, A.R. was working as a sales associate at a
Sprint store in Moreno Valley, when a man—later identified as Jamahd McCoy2—
entered the store and asked about service. A.R. described McCoy as “5-7, skinny guy,
young guy, African-American guy like me.” McCoy said he would probably come back
later and left the store. A.R. went into a locked back room, where his supervisor G.C.
was performing an inventory count, then walked back to the front of the store. About a
minute and a half later, McCoy ran back into the store, pulled out a semiautomatic
handgun, and pointed it at A.R. McCoy said something about shooting A.R. and told him
to open the back room. A.R. tried to open the back room door, but he was scared and had
trouble entering the code on a keypad. McCoy said, “If you keep messing around, I’m
going to shoot you.”
When A.R. finally unlocked the door to the back room, he opened the door and
said to G.C., “he’s got a gun.” McCoy pointed his gun at G.C. and said, “Get down” and
“Don’t look at me.” A.R. and G.C. got down on the floor. Another African-American
1 Because defendant does not challenge his convictions for robbing the Verizon store (counts 1 & 2) or his conviction for leading the police on a highspeed chase after that robbery (count 3), we need not set forth the facts of those offenses, including the testimony of the sole witness called by the defense.
2 McCoy pleaded guilty before trial and is not a party to this appeal.
3
man entered the store, walked into the back room, and kicked A.R.’s foot out of the way
because it was holding the door open. When the door closed, McCoy and the other man
said, “Just don’t do anything stupid,” and “Don’t look at us and everything will be all
right.”3 The second man had bags and ties in his hands, and the two men filled the bags
with “83 or 85” phones. After taking the phones, the two men asked where the money
was. Fearing she might get shot, G.C. gave them $400 from the cash registers. G.C.
testified she did not recognize defendant as being the second man who entered the back
room, and A.R. testified he did not see the second man’s face. Video footage taken
during the robbery of the Sprint store was played for the jury.
Investigator Sinclair of the Riverside County Sheriff’s Department was assigned to
investigate the Sprint store robbery and collected the surveillance video. He watched the
video “dozens of times,” “looking for any unique investigative options to pursue
including clothing, weapons, identification of persons, . . . actions, mannerisms, vehicles,
you name it.” When defendant and another man were arrested on the day of the
December 4, 2017 robbery of the Verizon store and the highspeed chase, Sinclair had the
opportunity to see defendant in person. Sinclair described defendant as African-
American, about six-foot-one-inch tall, and weighing over 250 pounds. He also testified
defendant was born in December 1970, meaning he was almost 47 years old at the time
of the Sprint store robbery. Sinclair instantly recognized defendant from the video.
3 G.C. testified she saw McCoy, and she described him as African-American and “maybe like early 20s.” She also described the second man as African-American and “[p]robably about the same age,” but added, “[i]t was so fast,” and “I didn’t see him very well.”
4
After seeing defendant in person, Sinclair reviewed the video again “and uniquely
identified [defendant] by what he carried himself as, [how] he walked, his unique facial
features, [and] his build.” Defendant was wearing a hat and sunglasses during the
robbery. Although the cameras did not capture defendant’s face directly from the front,
Sinclair testified the portion of the video showing defendant entering the inventory room
captured “his profile, his unique chin line, and [the] lower part of his face was very clear
once you do a frame by frame continuous analysis of it.” Sinclair also testified the
second man in the video had “a very upright and vertical walk” and swung his arms in
front of him in a nontraditional way. Sinclair observed defendant walk the same way in
person.
On cross-examination, Sinclair testified he did not take measurements of
defendant’s neck or note how long his arms were when comparing him to the second man
depicted in the video. About a snapshot taken from the video, Sinclair testified, “I
examined this angle, again dozens of times, trying to find unique things, perhaps tattoos,
piercings, things that would be unique to an individual. I did not note any. I didn’t
measure any symmetry or measurements in any way.” Sinclair testified DNA samples
and fingerprints were collected from the store. Although the video showed the second
man touch some surfaces, neither the DNA samples nor the fingerprints matched
defendant.
The second man in the video was wearing a hat and sunglasses; McCoy wore
nothing that covered his face. Nevertheless, on cross-examination, Sinclair testified he
was more certain of his identification of defendant as the second man than he was about
5
his identification of McCoy as the first man. “I was more certain . . . based on the
uniqueness and totality of what I reviewed and observed on each of them independently.”
Sinclair reiterated that, in part, he identified defendant from his unique profile. No two
people have the same profile, Sinclair testified, although they might have a similar one.
Sinclair took a photo of defendant’s profile and compared it to the second man’s profile,
as depicted in the video. He provided all photos taken of defendant to the prosecutor, but
he did not specifically state in his report that he had analyzed defendant’s profile.
Sinclair acknowledged on cross-examination that A.R. and G.C. did not identify
defendant as the second man, and he testified he did not show the photos taken of
defendant to those witnesses or ask if they could identify defendant as the second man.
He explained (about McCoy): “That is . . . not a standard I adopt to take photos of
suspects to witnesses or victims of crime to, perhaps, alter their recollection or influence
their recollection.” When analyzing the video, Sinclair observed no unique tattoos,
marks, or scars on the second man “that would have connected” defendant to the robbery.
And when defendant’s home was searched after the Verizon store robbery and highspeed
chase, Sinclair did not find the clothing or hat worn by the second man in the video.
On redirect, Sinclair testified nothing was found at defendant’s home because he
had moved out, and the home “was completely empty.” He also testified the second
man’s arms were “clear” (i.e., he had no tattoos, scars, etc.), “and you can see them
through[out] the video.” And when Sinclair met defendant in person, he had no tattoos or
marks on his arms either.
6
The jury found defendant guilty of two counts of robbery for the Verizon store
heist (Pen. Code, § 211, counts 1 & 2), one count of leading the police on a highspeed
chase after the Verizon store robbery (Veh. Code, § 2800.2, count 3), and two counts of
robbery for the Sprint store heist (Pen. Code, § 211, counts 4 & 5). The jury also found
true sentencing enhancements for counts 1, 2, 4, and 5, that a principal in the robberies
(McCoy) was armed with a handgun. (Pen. Code, § 12022, subd. (a)(1).) Defendant
admitted he suffered a 1989 conviction for robbery (Pen. Code, § 211) and a 1994
conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)), both of
which were serious felonies (Pen. Code, § 667, subd. (a)) and strike priors (Pen. Code,
therefore, modify the sentence imposed for the firearm enhancements on counts 2, 4, and
5 to correctly reflect one-third the term or four months each.
C. Dueñas Error, if Any, Was Harmless Beyond a Reasonable Doubt.
Last, relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant contends the trial
court erred by imposing a restitution fine, a court operations fee, and a criminal
conviction assessment without first determining whether he had the present ability to pay
them. In a nutshell, Dueñas held a sentencing court violated the due process rights of a
defendant, who had committed her acts out of poverty, when it imposed certain
mandatory fees and fines, which lacked a statutory exception, without first making a
finding the unemployed defendant (who also suffered from cerebral palsy) had the ability
to pay while she was on probation. (Id. at pp. 1168-1169.) The People contend Dueñas
was wrongly decided and suggest a more appropriate analysis would be to decide
whether defendant’s restitution fine is excessive under the federal and state excessive
fines clauses. In addition, the People contend defendant’s nonpunitive court operations
fee and criminal conviction assessment simply do not implicate due process concerns.
15
Whether Dueñas was correctly decided is currently pending before the Supreme
Court,4 and we need not wade into that thicket. Dueñas error in this case, if any, was
harmless beyond a reasonable doubt. (People v. Jones (2019) 36 Cal.App.5th 1028,
1034-1035 [Dueñas error subject to harmless error analysis under Chapman v. California
(1967) 386 U.S. 18]; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [same].)
“[U]nlike the probationer defendant in Dueñas, it is entirely appropriate [on appeal] to
consider the wages [a] defendant may earn in prison on the inability-to-pay issue. (See
People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 . . . [ability to pay may include a
defendant’s prison wages]; [Pen. Code,] § 2085.5 [outlining how a restitution fine
balance may be collected from prison wages].)” (People v. Jenkins (2019) 40
Cal.App.5th 30, 41.)
“Wages in California prisons currently range from $12 to $56 a month. (Cal.
Code Regs., tit. 15, § 3041.2, subd. (a)(1); Cal. Dept. of Corrections and Rehabilitation,
Operations Manual, ch. 5, art. 12, § 51120.6, pp. 354-355 (Jan. 1, 2019) . . . .) And half
of any wages earned (along with half of any deposits made into his trust account) are
deducted to pay any outstanding restitution fine. (Pen. Code, § 2085.5, subd. (a); Cal.
Code Regs., tit. 15, § 3097, subd. (f).)” (People v. Jones, supra, 36 Cal.App.5th at
4 The Supreme Court granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (review granted Nov. 13, 2019, S257844) to decide the following questions: “Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant’s inability to pay?” (People v. Kopp (Nov. 13, 2019, S257844) 2019 Cal. Lexis 8371.)
16
p. 1035.) Defendant was sentenced to state prison for more than 20 years. Although it
will likely take him some time, defendant will have the opportunity during his lengthy
prison sentence to pay his $200 court operations fee, his $150 criminal conviction
assessment, and his $300 restitution fine through prison wages and gifts.5 (People v.
Aviles (2019) 39 Cal.App.5th 1055, 1077 [“While it may take defendant some time to pay
the amounts imposed in this case, that circumstance does not support his inability to
make payments on these amounts from either prison wages or monetary gifts from family
and friends during his lengthy prison sentence.”]; People v. Jones, at p. 1035 [“Given that
the restitution fine is $300 and the assessments are $70, Jones will have sufficient time to
earn these amounts during his [six-year] sentence, even assuming Jones earns nothing
more than the minimum.”]; People v. Johnson, supra, 35 Cal.App.5th at p. 139 [finding
error harmless beyond a reasonable doubt because “[t]he idea that [defendant] cannot
afford to pay $370 while serving an eight-year prison sentence is unsustainable”].)
5 In his interview with the probation department for its sentencing recommendation and report, defendant said he suffered from carpal tunnel syndrome in his wrists, which caused him extreme pain, and he had knee problems. Otherwise, defendant reported he was in fair physical health and good mental health. Defendant also informed the probation department that, before he was arrested, he was out of work but earned $2,000 a month doing side jobs, and he had been receiving temporary disability income benefits, but those benefits had been discontinued pending his application for permanent disability income. But there is nothing in the record to suggest defendant is completely disabled and unable to perform any work during his imprisonment.
17
III.
DISPOSITION
The sentences for the firearm enhancements for counts 2, 4, and 5 are modified to
reflect the correct sentence of four months each. The clerk of the superior court shall
prepare an amended abstract of judgment and forward it to the Department of Corrections
and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
SLOUGH J.
MENETREZ J.
18
AI Brief
AI-generated · verify before citing
Holding. The court held that trial counsel was not ineffective for failing to object to admissible lay witness identification testimony and that any error regarding the defendant's ability to pay fines and fees was harmless. The court also held that the trial court erred by imposing full-term firearm enhancements for subordinate counts, requiring modification of the sentence.
Issues
Did trial counsel render ineffective assistance by failing to object to an investigator's lay opinion identifying the defendant in surveillance footage?
Did the trial court err by imposing full one-year terms for firearm enhancements on subordinate counts?
Did the trial court err by imposing fines and fees without determining the defendant's ability to pay under People v. Dueñas?
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“We conclude defendant’s trial attorney provided effective assistance of counsel by not interposing a futile objection to properly admitted lay witness testimony identifying defendant as one of the robbers of the Sprint store”
“The People concede, and we agree, the trial court erred by imposing full one-year terms for the firearm enhancements tied to subordinate counts.”
“Dueñas error during sentencing, if any, was harmless beyond a reasonable doubt.”