People v. Taylor ( 2020 )

Filed 1/6/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B293881
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. MA072867)
ISAAC WILLIAM TAYLOR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Shannon Knight, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Maxine Weksler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Noah P. Hill, and Paul S.
Thies, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Isaac Taylor used a gun to back David Ho four steps
towards a dark alley, where Taylor took Ho’s wallet. Based on
Ho’s four steps backwards, a jury convicted Taylor of kidnapping
to commit robbery as well as of the robbery itself. We reverse the
kidnapping conviction, address sentencing issues, remand for
resentencing, and otherwise affirm. Code references are to the
Penal Code.
I
Ho worked at a nail salon. On December 22, 2017 at 6:00
p.m., he went out to his usual place to smoke, which was on the
sidewalk in front, next to a poster in the salon’s large front
window that blocked his customers’ view of him with a cigarette.
Night had fallen. Lighting illuminated the salon’s interior and
its sheltered front sidewalk, as well as the surrounding plaza and
parking lot. But the alley right next to the salon was unlit.
As Ho left through the front door, Taylor happened to walk
by on the sidewalk. Taylor passed Ho without pause or comment,
but then Taylor circled back. Video evidence showed Taylor
returning to Ho about 27 seconds later. Ho testified Taylor yelled
“Do you believe in Jesus” two or three times and told Ho to look
down, where Taylor was pointing a gun at Ho at waist level.
Taylor told Ho to move back into the alley. Ho obeyed.
Taylor did not touch him. Ho testified he took “three, four steps”
backward: “a very short distance . . . .”
When Ho stopped, he was at the corner of the building and
12 inches into the unlit alley next to the salon, blocked from
everyone’s view. Ho was “inside around the corner in the alley . .
. .” Taylor demanded Ho’s wallet, which Ho surrendered. Taylor
said, “there better be money [in the wallet] or you’re going to die
tonight.” Taylor told Ho to walk back into the shop and “don’t
look back.” Ho slowly walked back inside the salon.
2
A video showed Ho returned to the nail salon about 83
seconds after Taylor approached him the second time.
The jury convicted Taylor of second degree robbery (count
2, § 211) and of kidnapping to commit robbery (count 1, § 209,
subd. (b)(1)). It found Taylor used a handgun in the robbery and
kidnapping. At sentencing, Taylor admitted a prior serious
felony conviction. The trial court sentenced Taylor to 29 years to
life for kidnapping (seven years to life doubled due to the prior
conviction plus a five-year serious felony enhancement under §
667(a)(1) and a ten-year firearm enhancement under §
12022.53(b)) and 25 years for robbery (five years doubled plus a
five-year serious felony enhancement and a ten-year firearm
enhancement). The court stayed the robbery sentence under
section 654 and imposed fines and fees.
II
We reverse the kidnapping conviction because Ho’s
movement was merely incidental to the robbery.
We review the evidence in the light most favorable to the
prosecution to see if jurors could have found the crime’s essential
elements beyond a reasonable doubt. (People v. Virgil (2011) 51
Cal. 4th 1210, 1263.) As is sometimes the case, this review
becomes a question of law about the precise liability rule. (E.g.,
People v. Bipialaka (2019) 34 Cal.App.5th 455, 458–462.) When
defining this rule, our review is independent, but we continue to
view the facts in the light favorable to the party that prevailed at
trial.
The crime at issue is section 209’s kidnapping to commit
robbery, which is aggravated kidnapping, in contrast to simple
kidnappings illegal under section 207. How much must
kidnappers move victims to commit aggravated kidnapping? The
jargon for this issue is “asportation.”
The statute sets two requirements:
3
1. The defendant must move the victim beyond
movement “merely incidental” to the robbery, and
2. This movement must increase the victim’s “risk of
harm” beyond that necessarily present in the
robbery. (§ 209, subd. (b)(2).)
Both requirements are essential. (People v. Washington
(2005) 127 Cal. App. 4th 290, 301.) The requirements are
interrelated. No minimum distance is required if the movement
is substantial. (People v. Dominguez (2006) 39 Cal. 4th 1141,
1152 (Dominguez).) In 1997, the Legislature modified the second
requirement by replacing the need substantially to increase the
risk of harm to the victim with a requirement merely to increase
that risk. (People v. Vines (2011) 51 Cal. 4th 830, 869, fn. 20,
overruled on other grounds by People v. Hardy (2018) 5 Cal.5th
56, 104.)
This case turns on requirement one. Because Taylor’s
movement of Ho was merely incidental to the robbery, this was
not kidnapping. This was just robbery.
Turbulent change has shaped this field of the law.
In 1872, California’s common law of simple kidnapping
required kidnappers to move their victims across county or state
lines. California’s 1872 statute codified this rule. (People v.
Nguyen (2000) 22 Cal. 4th 872, 882 (Nguyen).) This 1872
formulation sharply confined the definition of kidnapping
because relatively few assailants take victims across a county
line. Because this conduct is unusual, so too were aggravated
kidnapping cases.
This legal situation changed in the 1950s with the decisions
in People v. Knowles (1950) 35 Cal. 2d 175 (Knowles) and People v.
Chessman (1951) 38 Cal. 2d 166 (Chessman).
The 1950 Knowles decision anticipated Chessman, and
involved Caryl Chessman’s confederate. Knowles and Chessman
4
robbed a store by initially ordering the clerks into a rear
stockroom. The robbers forced one clerk back out and then
returned him to the stockroom. The Supreme Court held this
back-and-forth was kidnapping to commit robbery. (Knowles,
supra, 35 Cal.2d at pp. 180–186.)
Then the 1951 Chessman decision eliminated the
requirement kidnappers move victims any distance at all.
Chessman interpreted the California Penal Code to mean the act
of forcibly moving a victim any distance, no matter how short or
for what purpose, constituted kidnapping: “It is the fact, not the
distance, of forcible removal which constitutes kidnaping in this
state.” (Chessman, supra, 38 Cal.2d at p. 192.)
The Knowles and Chessman decisions greatly loosened the
definition of kidnapping, thus making it far easier to charge and
to prosecute. Indeed, these decisions threatened entirely to
eliminate the distinction between kidnapping on one hand and
robbery or rape on the other. Assailants commonly move robbery
or rape victims at least some distance. Motionless crimes are
possible but not customary. Under Knowles and Chessman, even
insignificant movements could add an aggravated kidnapping
count to the case. This meant most robberies became
kidnappings to commit robbery.
This judicial innovation was a bad idea. Dissenting Justice
Edmonds in Knowles decried this “startling innovation in
criminal law.” Justice Edmonds observed this innovation meant
the crime of kidnapping “may merge into the crime of robbery.”
(Knowles, supra, 35 Cal.2d at p. 190 (dis. opn. of Edmonds, J.),
italics added.)
Merging aggravated kidnapping into robbery had an
adverse effect. Robbery, although serious, was traditionally less
serious than aggravated kidnapping. But merging the two made
the extremely severe penalties for aggravated kidnapping
5
available in most or all robbery cases. For instance, today the
minimum penalty for kidnapping for robbery is life in prison. (§
209, subd. (b).) Formerly the penalty could be death. So Knowles
and Chessman virtually invited overcharging.
The Knowles dissenters made exactly this forecast.
Dissenting Justice Edmonds predicted overcharging was
“inevitabl[e].” (Knowles, supra, 35 Cal.2d at pp. 190–191 (dis.
opn. of Edmonds, J.).) Dissenting Justice Carter used stronger
language: “The prosecuting attorney is given the sole and
arbitrary power to determine whether a person shall suffer life
imprisonment without possibility of parole or even death on the
one hand, or, in the case of robbery in the second degree, as little
as one year’s imprisonment. It all depends on the charge he
chooses, at his whim or caprice, to make against the accused. . . .
It is not to be supposed that the Legislature intended to place any
such drastic and arbitrary power in the hands of the district
attorney.” (Knowles, supra, 35 Cal.2d at pp. 203–204 (dis. opn. of
Carter, J.).)
These forecasts, made in dissent, proved true. About two
decades later, bad experience with the Chessman rule led to its
rejection.
Before Chessman, the crime of kidnapping had a distinctive
status as an extremely grave crime, worthy of distinctively and
extremely grave penalties. As Justices Edmonds and Carter
perceived, the core problem with the Knowles and Chessman rule
was that it threatened to, or did, abolish this distinctive status.
The virtue of retaining aggravated kidnapping as a distinct and
distinctively serious offense was lost.
Within decades, the California Supreme Court identified
this problem and responded to it. Its 1969 Daniels decision
revised Knowles’s and Chessman’s dilution of kidnapping
standards, citing sources that lamented inappropriate
6
prosecutions for kidnapping. (People v. Daniels (1969) 71 Cal. 2d
1119, 1138 (Daniels).)
The Daniels case involved multiple charges of aggravated
kidnapping where kidnapping distances were minimal: as short
as six feet. (Daniels, supra, 71 Cal.2d at p. 1126.) Daniels held
this was not kidnapping.
The Daniels decision suggested the Knowles and Chessman
decisions had “eviscerated” the kidnapping statute. (Daniels,
supra, 71 Cal.2d at p. 1132.) The Daniels opinion then quoted
the “learned draftsmen of the Model Code,” who wrote it was
“desirable to restrict the scope of kidnapping, as an alternative or
cumulative treatment of behavior whose chief significance is
robbery or rape, because the broad scope of this overlapping
offense has given rise to serious injustice . . . .” (Id. at p. 1138
[quoting Model Penal Code]; cf. id. at pp. 1137–1138 [quoting
Model Penal Code § 212.1, which recommended kidnappings can
arise only if victim is moved a “substantial distance from the
vicinity where he is found” or if victim is confined “for a
substantial period in a place of isolation,” italics added by Daniels
opinion].)
To cure the Chessman problem, Daniels established a new
two-part test for kidnapping for robbery, which the Legislature
later codified in section 209:
1. The defendant must move the victim beyond movement
“merely incidental” to the robbery, and
2. This movement must increase the victim’s risk of harm
beyond the risk necessarily present in the robbery. (§ 209,
subd. (b)(2); see Nguyen, supra, 22 Cal.4th at pp. 877–878;
Dominguez, supra, 39 Cal.4th at p. 1150.)
The Daniels test aimed to restrict the definition of
kidnapping and thereby to reinstate its distinctive character as
an extremely serious crime different from robbery or rape. (See
7
Daniels, supra, 71 Cal.2d at p. 1132 [mere movement of a victim
should not inevitably lead to a kidnapping indictment, because
movement is incidental to many crimes].)
The aim of Daniels was clear, but the wording of its test
created uncertainty. (Cf. Dominguez, supra, 39 Cal.4th at p.
1151 [“difficult to capture in a simple verbal formulation that
would apply to all cases”].) The same is true of the codification of
Daniels, which restricts kidnapping to commit robbery to cases
where “the movement of the victim is beyond that merely
incidental to the commission of . . . the intended underlying
[robbery].” (§ 209, subd. (b)(2), italics added.)
Experience revealed the ambiguity of this “merely
incidental” test. There was no clear and objective way to
determine when moving a victim is “incidental” to a robbery.
How does one determine what the major part of the robbery was?
What is the method for deciding if acts are merely incidental to
it?
To determine what is “incidental” about a robbery, courts
cannot ask the obvious person: the robber. Taylor did not testify
in this case, but more fundamental than this practical obstacle is
the fact robberies can be highly opportunistic, as was Taylor’s.
Ho popped out for a smoke just as Taylor happened to walk by.
In the space of 27 seconds, Taylor, with his gun and on the prowl,
apparently reacted to Ho’s chance appearance by deciding to go
back for Ho’s wallet. It is unknowable whether Taylor in those
seconds formulated some plan featuring major and incidental
elements, or whether Taylor just formed a vague notion — “get
his wallet” — and resolved to react as events unfolded. The man
who authored the event will never say what was central or
incidental.
Nor is it easy, after the fact, to impose objective and logical
order on a robbery by dividing it into major and incidental
8
elements. There is no clear method or meter. The criteria are
amorphous. Subjectivity imperils this work.
Yet the Legislature unquestionably had something definite
in mind when it created this crime in 1901. (See Knowles, supra,
35 Cal.2d at p. 194 (dis. opn. of Edmonds, J.) [quoting Stats.
1901, ch. 83, p. 98].) To be true to legislative intent, we search
for the archetypical offense.
Dissenting Justice Edmonds, whose insights were prescient
in this field, identified an example from precedent: People v.
Fisher (1916) 30 Cal. App. 135, 137 (Fisher). The criminals’ goal
in this example was to exact from the victim’s relatives “money,
lands, promissory notes, deeds, real property, personal property,
and other valuable things.” (Fisher, supra, 30 Cal.App. at p.
137.) Justice Edmonds described the Fisher decision like this:
“[T]he court prefaced its statement of facts by noting that the
record ‘reads as though it were a tale of medieval brigandage.’
The defendants seized the victim on the highway and forced him
to write a note to his secretary explaining his absence. They then
drove him from Merced to Stockton, where he escaped and they
were captured. Wire-tapping equipment, unsigned deeds to all of
the victim’s real property and a number of blank promissory
notes were found in the automobile. This was a clear case of
kidnaping for the purpose of robbery, that is, the property was to
be obtained from a victim’s person without his consent.
Moreover, viewing the transaction in its entirety, it was an
orthodox kidnaping.” (Knowles, supra, 35 Cal.2d at p. 198 (dis.
opn. of Edmonds, J.), italics added.)
One can generalize Justice Edmonds’s “orthodox” example
of Fisher. The classic kidnapping to commit robbery involves a
robber taking a victim from one place to another to help get a
distant and valuable thing the robber wants: money from a cash
machine, treasure from a home, and so forth. (E.g. Nguyen,
9
supra, 22 Cal.4th at pp. 874–876 [robbers drove victim from her
home to ATM to get cash]; People v. Stathos (1971) 17 Cal. App. 3d
33, 36, 39 [robber drove restaurant owner from his home to
restaurant to open the safe], disapproved on other grounds in In
re Earley (1975) 14 Cal. 3d 122, 127–128.)
There was nothing like a classic aggravated kidnapping in
this case. Rather, this robbery was just an ordinary robbery.
The victim backed up four steps and ended up 12 inches into an
alley, where the darkness and the corner screened the robbery,
which is where robbers typically want to be: out of public view.
Taylor never confined Ho in an isolated room. The whole episode
lasted a mere minute and a half. This movement was trivial and
incidental to the robbery.
This case has no evidence of kidnapping for robbery. (See
Daniels, supra, 71 Cal.2d at p. 1135 [“It is a common occurrence
in robbery, for example, that the victim be confined briefly at
gunpoint or bound and detained, or moved into and left in
another room or place”].)
Many decisions compel this result. First among them is
Daniels itself, where the distances involved in the several crimes
ranged from six to 30 feet. (Daniels, supra, 71 Cal.2d at p. 1126.)
Daniels held these “brief movements” were merely incidental to
robbery and could not support an aggravated kidnapping charge.
(Id. at p. 1140.) Under Daniels, we must reverse Taylor’s
conviction for aggravated kidnapping.
The People v. Williams (1970) 2 Cal. 3d 894, 899–903
(Williams) decision presents a second decisive factual scenario.
The robbers in Williams moved gas station attendant Murry from
the cash register to the bathroom, where they locked him up.
Then they released Murry and forced him to help them move
items outside to a getaway car. Finally they ordered Murry to
walk away. After Daniels, the Supreme Court in Williams ruled
10
this movement was incidental to the robbery. (Williams, supra, 2
Cal.3d at pp. 902–903.)
Williams compels reversal of Taylor’s kidnapping
conviction. Taylor’s movement of Ho was trivial compared to the
movement in Williams.
To the same effect is In re Crumpton (1973) 9 Cal. 3d 463,
466 (Crumpton), which also followed Daniels. Crumpton and
another robbed a gas station attendant. One robber pointed a
gun at the attendant, who had been walking from the service
island to the station office. They forced him down behind a truck
parked 20 or 30 feet away on the station premises. Crumpton
emptied the service island’s cash box while the other man
searched, robbed, and then shot the prostrate attendant.
(Crumpton, supra, 9 Cal.3d at p. 466.) The Supreme Court
reversed Crumpton’s conviction for kidnapping to commit robbery
because moving the attendant was merely incidental to the
robbery. The “victim was not compelled to move a substantial
distance.” (Ibid.)
The robbers in Daniels, Williams, and Crumpton moved
their victims more than Taylor moved Ho. Daniels, Williams,
and Crumpton show Taylor’s conduct was merely incidental to
robbery and was not kidnapping.
Taylor cites Daniels, Williams, and Crumpton. The
prosecution’s brief omits mention of these controlling holdings.
At oral argument, the prosecution offered no way to distinguish
these cases.
The prosecution cites Dominguez, which is consistent with
our result. Assailants abducted a woman from a rural roadside
down a 12-foot embankment and 25 feet into an orchard, where
they raped and murdered her. (Dominguez, supra, 39 Cal.4th at
pp. 1150–1155.) Dominguez applied rather than overruled
Daniels. (Id. at pp. 1149–1150, 1152, 1153–1154.) Four steps on
11
a flat sidewalk is less of a distance than an abduction down a 12-
foot embankment and 25 feet into an orchard.
Dominguez cited People v. Shadden (2001) 93 Cal. App. 4th
164, 167 (Shadden) saying its facts “might” show sufficient
movement to count as aggravated kidnapping. (Dominguez,
supra, 39 Cal.4th at p. 1152, italics added.) The use of the word
“might” was deliberately equivocal. Shadden entered a video
store at night, punched the owner, and dragged her back nine
feet into a twelve-by-eight-foot back room. Shadden closed the
door, tore off the owner’s underwear, straddled her, and opened
his zipper halfway. But a customer called the owner’s name,
prompting Shadden to break off the attack. Shadden affirmed
the conviction for aggravated kidnapping. (Shadden, supra, 93
Cal.App.4th at pp. 167–170.) There are many possible
distinctions between Shadden and this case: nine feet versus
four steps, back room versus no back room, rape versus robbery,
and so on. We simply note nine feet might be enough, but in any
event nine feet is more than four steps.
More exquisite is the difference between this four-step case
and the recent five-step decision about simple kidnapping in
People v. Singh (2019) 42 Cal.App.5th 175 (Singh). As a
stranger, Singh approached a mother holding her one-year-old
son. (Id. at p. 178.) Singh spoke to the child. The mother spoke
only Spanish and could not understand Singh, who touched her
son’s hand and made gestures trying to coax him off her. The
mother told her son to ignore Singh. She stepped into a bus that
arrived and put her son down to pay the fare. Singh took the
child and walked five steps before the mother ran up and yanked
her child back. (Ibid.) A jury convicted Singh of simple
kidnapping under section 207. (Id. at pp. 178, 180.) The Court of
Appeal affirmed. (Id. at p. 189.) The Singh case was a simple
kidnapping and posed none of the definitional problems plaguing
12
aggravated kidnapping. Beyond the difference between four and
five steps, moreover, Singh is consistent with our analysis here.
The mother rescued her son by interrupting the kidnapper’s
travel, which shows the actual distance was a poor measure of
the intended distance. (Cf. People v. Newman (2019) 40
Cal.App.5th 68, 70–72 [victim traveled 190 feet and finally broke
free].) No rescue or escape interrupted Taylor’s movement of Ho,
which was merely incidental to the robbery.
The prosecution cites other holdings, but none is pertinent.
(See People v. James (2007) 148 Cal. App. 4th 446, 449–457 [over
the course of an hour, victim was moved from parking lot into
bingo club, thrown to floor, then confined to bathroom]; People v.
Corcoran (2006) 143 Cal. App. 4th 272, 279–280 & fn. 5 [victims
herded 10 feet from public area to small back office without
windows and with a solid door; defense conceded movement was
substantial].)
The prosecution argues Taylor increased the danger to Ho
by backing him into the dark alley. This argument goes to
requirement two and does not change the analysis of requirement
one, because this movement was merely incidental to the robbery.
The two elements are interrelated but do not subsume each
other.
The law is not always simply logical and commonsensical
but here it is, and that is desirable because criminal law aims to
express and to enforce a community’s shared moral intuitions.
The average Californian would be surprised to hear four steps
backwards could be kidnapping. And here the average
Californian would be right: that is not a kidnapping under these
facts.
In sum, we reverse Taylor’s conviction for kidnapping for
robbery.
III
13
We address the trial court’s sentencing for the remaining
conviction for robbery. The trial court did not abuse its
discretion.
A
The trial court did not abuse its discretion by denying
Taylor’s request to strike his prior conviction under the Three
Strikes law. (§§ 667, subds. (b)–(i); 1170.12, subds. (a)–(d); 1385,
subd. (a).) Taylor’s criminal history includes four convictions for
possession or sale of drugs in the 1980s, a 1984 conviction for
vehicle theft, a 1991 incident of providing false information to a
peace officer for which there was no disposition in the record, a
1992 conviction for robbery with a deadly weapon for which
Taylor received three years in prison, a 1993 conviction for
robbery for which Taylor received a 12-year sentence, and a
Nevada conditional release violation in 2011. The 1993 robbery
conviction was the one Taylor asked the court to strike.
Taylor argues he deserved leniency due to his age, poor
health, and because his crimes were “not egregiously” serious.
Taylor cites People v. Bishop (1997) 56 Cal. App. 4th 1245 and
People v. Garcia (1999) 20 Cal. 4th 490 to argue the trial court
should have granted his request to strike his prior conviction, but
those cases affirmed trial courts’ use of discretion to dismiss
strikes, and this court’s exercise of its discretion was sound.
Taylor argues a long sentence is inappropriate in light of his age
because “all but the most exceptional criminals, even violent
ones, mature out of lawbreaking before middle age.” At 55,
Taylor seems proof to the contrary.
A repeat criminal falls outside the spirit of the Three
Strikes law only in extraordinary circumstances. (People v.
Carmony (2004) 33 Cal. 4th 367, 378.) During sentencing, the
trial court considered the probation report, records presented by
the defense, including Taylor’s health records, and evidence
14
presented at trial. The court noted Taylor’s “lengthy” and “fairly
consistent” criminal history and found he fell squarely within the
Three Strikes law. The trial court’s decision was valid.
B
The trial court did not abuse its discretion in declining to
dismiss the five-year serious felony enhancement under section
667(a)(1). Remand is not warranted on this score. Senate Bill
No. 1393 (2017–2018 Reg. Sess.) (S.B. 1393) amended section 667
to give trial courts discretion to strike five-year sentencing
enhancements based on prior serious felony convictions.
Resentencing is not required when the trial court clearly stated it
would not in any event have stricken an enhancement. (People v.
McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).) This
trial court discussed the change in the law and said it would “not
be inclined to strike the five-year prior” even if it had discretion.
Taylor concedes the trial court “announced its disinclination to
strike or reduce” the enhancement but argues this was an abuse
of discretion. It was not, for reasons already given.
The case must be remanded, however, to allow the court to
exercise discretion under Senate Bill No. 620 (2017–2018 Reg.
Sess.) (S.B. 620). S.B. 620 gives a court discretion to strike or
dismiss a firearm enhancement imposed under section 12022.53.
Although S.B. 620 did not take effect until after Taylor was
sentenced, it applies retroactively to convictions that are not
final. (People v. K.P. (2018) 30 Cal.App.5th 331, 339.) Remand is
required unless the trial court clearly shows it would not have
stricken the firearm enhancement if it did have discretion.
(McDaniels, supra, 22 Cal.App.5th at p. 425.) Unlike the five-
year serious felony enhancement, the trial court made no
statement about what it would do if it had discretion to strike or
reduce the ten-year firearm enhancement. It did not clearly show
15
it would not have stricken the enhancement, so remand is
warranted.
IV
Taylor forfeited his People v. Dueñas (2019) 30 Cal.App.5th
1157 claims because he did not object to fines and fees in the trial
court. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–
1155.)
Taylor contends his trial counsel rendered ineffective
assistance by failing to object to the court’s assessments and fees
without a determination of Taylor’s ability to pay. To prove
ineffective assistance of counsel, a defendant must show counsel’s
efforts fell below an objective standard of reasonableness.
(Strickland v. Washington (1984) 466 U.S. 668, 688.) Judicial
scrutiny of counsel’s performance is highly deferential. (Id. at p.
689.) We presume counsel’s conduct falls within the wide range
of reasonable professional assistance. (Ibid.) Failure to object
rarely amounts to constitutionally ineffective representation.
(People v. Boyette (2002) 29 Cal. 4th 381, 424.) Taylor asserts but
does not attempt to demonstrate his lawyer’s conduct fell below
an objective standard of reasonableness. We have no basis to find
Taylor’s counsel rendered ineffective assistance.
In his reply brief, Taylor raises other arguments for the
first time. Taylor has forfeited these tardy arguments. (People v.
Rangel (2016) 62 Cal. 4th 1192, 1218–1219.)
16
DISPOSITION
The judgment is reversed in part, affirmed in part, and
remanded with directions. The kidnapping conviction is
reversed. The trial court shall amend the abstract of judgment
accordingly and forward the abstract to the appropriate
correctional office. Because we have stricken part of the
sentence, we remand for a full resentencing as to all counts, so
the trial court can exercise its sentencing discretion in light of the
changed circumstances. (People v. Buycks (2018) 5 Cal.5th 857,
893.) We direct the trial court to decide whether it will exercise
its newfound discretion to strike the firearm enhancement under
S.B. 620. Taylor has the right to be present and to have the
assistance of counsel at this remand hearing. (People v.
Rodriguez (1998) 17 Cal. 4th 253, 258–260.) In all other respects,
the judgment is affirmed.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
17