1

Filed 12/27/23 P. v. Taylor CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT ED TAYLOR,

Defendant and Appellant.

 A164446

 (Mendocino County Super. Ct.

 No. SCUKCRCR202035040)

A jury convicted Robert Ed Taylor of first degree burglary based on 

evidence that he took “about $800” from a Motel 6 room occupied as a 

residence by two people. The trial court sentenced Taylor, now age 63, to a 

term of 25 years to life, enhanced by the Three Strikes law. (Pen. Code, 

§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A).)

1

The trial court imposed the lengthy sentence against an unusual 

procedural backdrop, which forms the primary basis for Taylor’s appeal. 

1 Undesignated statutory references are to the Penal Code. “The 

‘Three Strikes’ law provides that for a defendant convicted of a felony who 

has sustained two or more qualifying prior felony convictions—commonly 

known as strikes—‘the term for the current felony conviction shall be an 

indeterminate term of life imprisonment,’ with the ‘minimum term . . .’ being 

the greatest of three options” (People v. Acosta (2002) 29 Cal.4th 105, 108), 

one of which is 25 years (§§ 667, subd. (e)(2)(A)(ii), 1170.12, 

subd. (c)(2)(A)(ii)).
2

Before trial, Taylor had reached an agreement with the People. The People 

had agreed to dismiss three of the four prior strikes they had charged. Taylor

would submit to a bench rather than jury trial. And the People could rely on 

testimony from Taylor’s preliminary hearing, including hearsay, without recalling witnesses. 

Based on discussions prior to the bench trial, however, the trial court 

concluded that the parties disagreed on the basic terms of the agreement and 

that the court could not enforce it. The court attempted to restore the status 

quo by resetting the matter for a jury trial at which all the rules of evidence 

would apply. The People used a new information to re-charge the three prior 

strikes that the People had dismissed under the agreement, and to allege two 

additional prior strikes not charged in the original information. 

Taylor contends the court erred by refusing to enforce the agreement. 

Specifically, he argues the court lacked jurisdiction to reinstate the strike 

allegations it had dismissed pursuant to the agreement. He also contends 

the trial court abused its discretion by not dismissing the prior strikes in the 

interests of justice. Taylor further argues that a 25-year-to-life sentence is so 

grossly disproportionate to his offense that it amounts to cruel or unusual 

punishment under the California Constitution. 

We find the trial court properly restored the status quo when Taylor

repudiated the parties’ agreement, including by reinstating the prior strikes 

that had previously been charged. The court’s decision was not jurisdictional 

error. We agree, however, that Taylor’s sentence was not appropriate and 

that strikes should be dismissed in the interests of justice. We remand for 

resentencing.
3

BACKGROUND

A. Taylor’s $800 Burglary at a Motel 6

In May 2020, Ashlee J. and Will R. lived together at the Motel 6 North

in Ukiah.

2 On the night of May 7, they went out to get food, leaving the door 

to their room open, but returned because Will had forgotten his wallet. Will

lingered in the car while Ashlee went up the stairs to their room.

Ashlee stopped on the stairs to talk to someone. When she looked up, 

she saw Taylor in the room and called Will. Neither Ashlee nor Will had ever 

seen Taylor before or given him permission to enter their room. Will ran past 

Ashlee up the stairs and saw that their room was “ransacked.” Will asked 

Taylor what he was doing there and punched Taylor in the face. Will

“push[ed] [Taylor] towards the stairway to go downstairs.”

Ashlee noticed that about $800 was missing from her purse in the 

room. She told Will that the money was missing and called 911 to report the 

theft. Meanwhile, Will threw two bags off the balcony, which Taylor picked 

up. Will then ran down the stairs to confront Taylor in the parking lot. Will

“t[ook] a knee” and went through Taylor’s bags, and he asked Taylor to empty 

his bags and pocket. Taylor pulled out $800 and gave it to Will. 

An officer responded to Ashlee’s 911 call and found Taylor walking in 

the area. Taylor denied he was coming from the Motel 6. Taylor said he was 

walking from “the college” (nearby Mendocino College), which the officer

found strange because it was “1:00 o’clock, 12:00 o’clock in the morning.” 

Deputy Sheriff August Kinney arrived, read Taylor his Miranda rights, and 

arrested him. The officers discovered a Motel 6 room card in one of Taylor’s

pockets, which the investigation later determined to be an invalid card to 

2 The factual background concerning Taylor’s burglary comes from the 

jury trial transcript.
4

Ashlee and Will’s room. Deputy Kinney obtained video from a security 

camera, which showed Taylor entering and exiting Ashlee and Will’s room 

multiple times; he stayed inside the room for over 25 minutes before Ashlee 

found him and Will confronted him. 

B. The Charges and the Agreement

The People charged Taylor with first degree burglary. (§§ 459, 460, 

subd. (a).) They alleged four prior strike convictions: two for making

criminal threats in 2016 (§ 422), one for second degree robbery with a firearm 

in 1989 (§§ 211, 12022.5), and one for robbery with a firearm in 1979 (ibid.). 

While in custody, Taylor refused to appear in court on several occasions, 

refused to speak with a doctor for a competency evaluation, and filed several 

motions under People v. Marsden (1970) 2 Cal.3d 118 to dismiss his counsel, 

which the trial court denied.

The court held a preliminary hearing on July 28, 2020. Deputy Kinney 

and Taylor himself were the only witnesses to testify. Deputy Kinney 

recounted his investigation and his conversations with Ashlee and Will, 

which included a discussion of their use of the motel room as a residence and 

their interactions with Taylor on the night in question. Taylor testified that 

he “was employed by Motel 6 painting homes by Michael, the owner of the 

place.” Taylor said he “rented the room” he had entered with another person,

and that he “got a call that said to go by my room and close my door.” Taylor 

stated he had a key to room 249. Ashlee and Will’s room, where they found 

Taylor, was number 236. Taylor said that he entered to “make sure all the 

property was in the room.” He testified the $800 he had with him was his

own, from his work painting at the motel.

After hearing this evidence and viewing a 55-minute security camera 

video of the incident, the court found sufficient evidence to hold Taylor to
5

answer for first degree burglary. The People filed an information charging 

Taylor with that offense and re-alleging the four prior strikes set forth in the

original complaint. Taylor pled not guilty and denied all of the strike 

allegations.

On October 2, 2020, the court and counsel discussed the terms of an

agreement. Taylor faced a sentence of 25 years to life as a consequence of his 

prior strikes. The prosecutor agreed to “take that 25-year-to-life potential off 

the table” if Taylor: “one, waives jury trial and [lets] us go by way of court 

trial”; “[t]wo, he admits the first strike allegation, which is the 422 

conviction” (for making criminal threats); and if Taylor was convicted, “he 

would take the . . . mitigated aspect off the table,” meaning his “exposure 

would either be 8 . . . or 12 years.” During the bench trial, “the preliminary 

hearing transcript would be admissible with no objection to hearsay. The 

[video] evidence that was used at that preliminary hearing would also come 

in. . . . Additional evidence could come in, the defendant could choose to 

testify, though he [doesn’t have] to testify.” “[I]f believed,” the evidence in the 

preliminary hearing transcript “would be proof beyond a reasonable doubt,”

although Taylor was not admitting guilt.

Taylor and his counsel expressed their agreement to the terms the 

prosecutor described. The trial court proceeded to take Taylor’s waiver of his 

right to a jury trial, which his counsel joined. The court next discussed 

Taylor’s waiver of the confrontation clause. The prosecutor stated, “Judge, 

let it also be in this case, not completely, but possibly a limited waiver of the 

right of confrontation . . . . He doesn’t have to waive it completely, but to the 

extent that the preliminary hearing transcript will be used as evidence, as I 

have outlined there has to be a waiver of confrontation.” The court and

Taylor then had a colloquy: “So, Mr. Taylor, another aspect of this agreement
6

is that at the court trial, . . . the transcript from the preliminary hearing can 

be admitted as evidence, which will allow the court to read the transcript and 

accept the testimony that was at the preliminary hearing without having 

necessarily those witnesses come to court and testify at the court trial. [¶] Do 

you understand that?” Taylor stated, “Yes your Honor.” The court explained 

that any video or other evidence presented at the preliminary hearing could 

be introduced at the court trial, and Taylor said he understood. Following an 

exchange with counsel, the court asked: “So, Mr. Taylor, . . . you are agreeing 

that [the evidence presented at the preliminary hearing] is admissible at the 

court trial and some of th[at] evidence . . . may have been hearsay, and you 

are giving up your right to object to that hearsay testimony at your court 

trial. [¶] Do you understand that?” Taylor stated, “Yes your Honor.” The 

court concluded, “So are you understanding that you are giving up your right 

to confrontation so far as we had explained it?” Taylor again agreed. 

The trial court then stated that it would take Taylor’s admission to the

first strike allegation and would “go ahead [and] implement that part of the 

agreement.” The court accepted Taylor’s admission and associated waivers. 

The prosecutor stated, “Based on that admission . . . I am going to ask the 

court to strike pursuant to this whole bargain the second, third and fourth 

strike allegations which in practicality takes three strikes off the table.” The 

trial court granted the People’s motion and dismissed the second, third, and 

fourth strikes. It scheduled the bench trial for October 13, 2020.

C. Trial Is Delayed and Taylor Refuses to Enter a Further Waiver

On the day of the scheduled court trial, Taylor’s counsel requested a 

competency evaluation and so the court vacated the trial date. The court 

ultimately found Taylor competent to stand trial and reinstated the 

proceedings on December 18, 2020.
7

The court re-confirmed that Taylor understood he was waiving his right 

to a jury trial per the parties’ agreement. The prosecutor explained that 

“what we’ve agreed to is that the evidence could include the testimony from 

the preliminary hearing without hearsay objections.” Taylor’s counsel 

agreed, but Taylor said, “What do you mean by that? The plaintiffs never 

came to the preliminary hearing . . . . [¶] The only one that came to the 

preliminary hearing was the officer. . . .” The prosecutor stated, “It was all 

the testimony received without a hearsay objection,” both “the witness’s 

testimony, and the officer’s testimony given.” Taylor protested: “There was 

only one person that took the stand . . . and that was the officer. The

witnesses didn’t show up at court at all.” The court replied, “So I am going to 

let your lawyer go ahead and explain it again to you when he sees you or 

meets with you, whenever that happens.” The court rescheduled the bench

trial for January 6, 2021. 

The parties appeared late in the day on January 6, and the court stated 

that the trial would be delayed “because of the volume of court proceedings 

today.” At this point, the prosecutor expressed a concern that “[t]here’s 

waivers that have to be entered” to effectuate the parties’ agreement and “we

don’t have those in place.” The prosecutor stated, “I don’t have a feeling we’re 

going to get those in place, and so I don’t believe the procedure set up has 

resulted in a meeting of the minds.” The prosecutor explained, “[T]he defense 

has said that he has a right to confront witnesses, and the—the reality is the 

procedure in place cannot go forward unless there’s a waiver of 

confrontation.” 

The court stated that while it believed it had adequate jury trial 

waivers from both parties, it must also take waivers of “the right to confront 

and cross-examine witnesses, and the right against self-incrimination. 
8

Neither waiver did I take. So unless those waivers want to be entered today, 

I don’t think we have a deal.” Taylor’s counsel objected, “Your Honor, I 

believe we had a deal. I don’t believe there’s a basis for withdrawing that 

deal. . . .” The court continued the matter “to think about it before I decide 

that” the parties’ agreement “has to be set aside. I’m not prepared to make 

that ruling today.” 

At a hearing the next day, the trial court summarized the history of the 

case, including its view that because the parties “would be stipulating to 

testimony presented at the preliminary hearing . . . whoever those people 

are . . . that testified at the preliminary hearing would not be testifying at the 

court trial which would require a waiver of the right to confront and crossexamine witnesses.” Taylor’s counsel stated that Taylor would not enter 

these waivers. The parties debated whether the agreement amounted to a 

“slow plea” (pursuant to which the parties agree to a bench trial with 

agreements concerning the use of evidence to expedite the trial, and with the 

understanding the defendant is likely to be found guilty (see People v. 

Morelos (2022) 13 Cal.5th 722, 744)), or was a procedural agreement for a 

“shortened court trial.” Taylor’s counsel explained: “There, I think, may be a 

misassumption that we are proceeding on a . . . slow plea. That is not the 

case. For this to be a slow plea, Mr. Taylor would have essentially had to 

acquiesce to his guilt in this matter . . . .” Taylor’s counsel stated that the 

parties had instead agreed to “a shortened court trial.” “Mr. Taylor entered 

into an agreement . . . that the preliminary transcript would be permitted to 

come in without objection to hearsay. I made a specific record on that day 

that that and only that was going to be agreed to . . . . In all other respects 

Mr. Taylor asserted his right to have a traditional trial, albeit a court 

trial . . . .” Taylor’s counsel insisted that there was no need “to take any kind 
9

of waiver of Mr. Taylor’s right of confrontation . . . .” According to Taylor’s 

counsel, “At no point that day did we attempt to take a waiver of Mr. Taylor’s 

right to confrontation . . . because we were not entering into a court trial 

predicated on Mr. Taylor’s admission of guilt.”

The prosecutor maintained that the agreement was a form of “slow 

plea,” which did not necessarily require an admission of guilt—and in any 

event, “we can’t do the procedure that counsel is suggesting without the 

waivers that they say they’re not entering.” The prosecutor concluded, “we do 

not have a meeting of the minds.” “So I’m asking the court to put the parties 

back in their . . . status quo and let’s set it for a jury trial.” 

The court agreed. It said: “I don’t think there was a true meeting of 

the minds in October regarding the type of proceeding we were all going 

forward with.” “[T]his notion that it was a shortened court trial did require a 

stipulation that the preliminary hearing testimony would come in without 

objection. Now, you may say it was . . . without a hearsay objection, so maybe 

you’re harboring a different kind of objection. But my understanding of it 

certainly was it was coming in without objection which would require a 

waiver of his right to confront whatever witness testified at the preliminary 

hearing.”

Taylor’s counsel again objected. He argued that the parties reached an

agreement in October, and he objected “to the court’s decision to relieve the 

prosecution of its obligation to conduct the trial and to allow it to withdraw 

the [jury trial] waiver.” The court responded, “I am sincerely hoping that 

counsel can talk with one another and possibly put this agreement back 

together,” but “at the time I took the waiver of jury, I don’t think I took the 

right waivers regarding everything else,” so “there’s an error sewn into the 

record.” Taylor’s counsel then suggested Taylor would be willing to enter 
10

some type of confrontation waiver, but not a “blanket” one. The court replied, 

“let’s just call it out what we’re talking about. . . . [W]e had one or more law 

enforcement officers come to the preliminary hearing and give Prop 115 

testimony.

[3]

. . . Now we’ve designed a method to have a court trial . . . where 

that same testimony would come in, and Mr. Taylor would have to waive his 

right not only that the officers’ testimony comes in but any statements by any

witness that the officer [gave] . . . at the preliminary hearing would also come 

in . . . and he’d be waiving his right to see and hear the witnesses testify that 

the officer was quoting . . . . He would also have to [waive] his right to 

confront witnesses and have you cross-examine them. . . .” The court 

confirmed, “[A]m I being clear?” Taylor’s counsel responded that the court 

was being clear. The court asked, “So is he prepared to do that?” Taylor’s 

counsel responded, “No.” 

The court concluded, “All right. Then we definitely don’t have a 

meeting of the minds because that was . . . fundamentally a premise that the 

court was proceeding on that the underlying witnesses who were quoted . . . 

at the preliminary hearing by a sworn peace officer, that their statements 

would come in for the truth of the matter without objection.” The court set 

the agreement aside and scheduled a jury trial. 

D. Taylor Is Convicted and Sentenced Under the Three Strikes Law

On April 5, 2021, the People filed an amended information, again 

charging Taylor with first degree burglary, re-alleging the four strikes from 

the original information, and newly alleging two additional strikes: one from 

2001 for assault with a deadly weapon with infliction of great bodily injury 

3 Under Proposition 115, voters added section 872, subdivision (b) to 

allow peace officers with special training (or with five or more years of 

experience) to provide hearsay testimony during preliminary hearings. 

(Walker v. Superior Court (2021) 12 Cal.5th 177, 197.)
11

(§§ 245, subd. (a)(1), 12022.7, subd. (a)) and one from 1979 for robbery (§ 211).

Trial began that same day. Taylor again testified in his own defense. He

now claimed that he went to the Motel 6 to buy marijuana from Will but said 

Will was high on methamphetamine and accused Taylor of stealing drugs 

from him. Taylor said his testimony at the preliminary hearing was different 

because he was giving “all kinds of crazy answers because [he] was upset” 

and “was just saying anything to get them to change this trial.” 

The jury returned a guilty verdict on the burglary charge on April 15. 

At a separate court trial, the court found the allegations of Taylor’s six prior 

strike convictions were true.

Taylor moved for a new trial. He argued that the court did not have 

jurisdiction to find he had more than one prior strike conviction “after 

already having stuck those allegations pursuant to the motion of the District 

Attorney and Penal Code section 1385.” In his briefing on that motion, 

Taylor noted, “The court has authority under [section] 1385 to dismiss a 

prosecution in the ‘furtherance of justice’ at any time,” argued that the court 

presumably engaged in this analysis at the time his strikes were dismissed

and should not have “undo[ne] the striking of prior strikes . . . without proper 

process,” and summarized the facts he claimed supported dismissing the 

strikes in furtherance of justice. Separately, Taylor moved for a ruling that a 

life sentence for his burglary conviction would constitute cruel or unusual 

punishment under the California Constitution.

The court denied both motions. At the hearing on the motion for a new 

trial, the court stated, “I don’t find that there is sufficient evidence . . . based

on the [totality] of the evidence that I have reviewed in this case as to the 

1385.”
12

On January 19, 2022, the court sentenced Taylor to a term of 25 years 

to life imprisonment under the Three Strikes law. Taylor appealed.

DISCUSSION

Taylor argues that in October 2020, the trial court properly dismissed 

his prior strikes in furtherance of justice pursuant to section 1385. He 

contends that in January 2021, the court misinterpreted the parties’ 

agreement and erroneously found additional waivers were required to 

effectuate it. The court’s conclusion allowed the People to “simply renege[] on 

[the] agreement.” Taylor further argues that the court lacked jurisdiction to 

reinstate the prior strikes at that point. Next, Taylor contends that even if 

the court properly reinstated his strikes before trial, it abused its discretion 

by failing to dismiss the strikes in furtherance of justice as invited by his 

motion for a new trial. He raises a further challenge to his sentence under 

article I, section 17 of the California Constitution, which bars cruel or 

unusual punishment.

As we explain below, Taylor repudiated a material term of the parties’

proposed submission procedure. The trial court properly restored the status 

quo as a result. Section 871.5, on which Taylor relies for his jurisdictional 

argument, does not apply under the facts of this case. We agree, however,

that justice requires five of Taylor’s six charged prior strikes be dismissed. 

The trial court abused its discretion by finding otherwise.

I. Restoring the Status Quo Prior to Trial

While the parties have debated whether to call it a “slow plea” or 

something else, the label does not matter—the trial court dismissed Taylor’s 

strikes in October 2020 pursuant to an agreement between the parties, which 

the court called “a form of resolution.” Like a plea agreement, this was “a 

form of contract,” and must be “interpreted according to general contract 
13

principles.” (People v. Shelton (2006) 37 Cal.4th 759, 767.) On appeal, if the

terms of the agreement as recited on the record are clear and explicit, they 

govern. (Ibid.) If there is any ambiguity, we consider the circumstances 

under which the disputed term was made and the matter to which it relates 

“to determine the sense in which the prosecutor and the trial court (the 

promisors) believed, at the time of making it, that defendant (the promisee) 

understood it.” (Id. at pp. 767–768.) 

Our review is therefore de novo unless interpreting the agreement 

turns on the credibility of extrinsic evidence. (People v. Paredes (2008) 160 

Cal.App.4th 496, 507.) We review a determination that the defendant 

breached an agreement with the People for substantial evidence. (See People 

v. Fuentes (2023) 87 Cal.App.5th 1286, 1302–1303.)

The terms of the agreement were not ambiguous to counsel or the trial 

court. When the parties put their agreement on the record in October 2020, 

the prosecutor said that “to the extent that the preliminary hearing 

transcript will be used as evidence, as I have outlined there has to be a 

waiver of confrontation.” The court explained to Taylor that it would “accept 

the testimony that was at the preliminary hearing without having 

necessarily those witnesses come to court and testify at the court trial.” The 

court clarified that “some of th[at] evidence . . . may have been hearsay, and 

you are giving up your right to object to that hearsay testimony at your court 

trial” and “you are giving up your right to confrontation so far as we had 

explained it.” 

It does seem possible that Taylor, as a layperson, just did not 

understand what it would mean to allow the use of the preliminary hearing 

testimony at the anticipated bench trial. Neither Will nor Ashlee had 

appeared to testify at the preliminary hearing. It is possible that Taylor 
14

believed his attorney would get the chance to examine them at the bench trial 

even if the People could use the preliminary hearing testimony from Deputy 

Kinney about what Will and Ashlee had told Kinney. As the court explained 

at length when the deal broke down, however, it was a “fundamental[] . . .

premise” that the statements of “the underlying witnesses . . . would come in 

for the truth of the matter without objection.” 

Whether or not the agreement was ambiguous, by late 2020 and early 

2021, Taylor did not agree to a bench trial without the right to examine Will 

and Ashlee. At the December 2020 hearing addressing the parameters of the

court trial, Taylor twice interjected to protest that Ashlee and Will “never 

came to the preliminary hearing . . . . [¶] The only one that came to the 

preliminary hearing was the officer. . . .” The court continued the matter to 

let Taylor’s counsel “explain it again to [him],” then continued the matter 

again “to think about it before I decide that” the parties’ agreement “has to be 

set aside.” Before making that ruling, the court very specifically asked if 

Taylor was willing to waive his right to confront “the witnesses . . . that the 

officer was quoting” and Taylor’s counsel answered, “No.”

Taylor urges the waivers the trial court already took back in October 

2020 were sufficient, and claims the court improperly demanded waivers “as 

to the entire court trial” at the January 2021 hearing rather than some more 

limited alternative. To the contrary, the court did not seek a “blanket” 

waiver of the confrontation clause, but focused on whether Taylor agreed to a 

waiver as to Ashlee and Will’s statements as related by Deputy Kinney 

during his preliminary hearing testimony. Whether or not the October 2020

waivers had been sufficient, Taylor now rejected this fundamental premise of 

the submission procedure the parties had contemplated. He either breached 
15

the agreement or else there had simply been no meeting of the minds in the 

first place.

“When either the prosecution or the defendant is deprived of benefits 

for which it has bargained, corresponding relief will lie from concessions 

made.” (People v. Collins (1978) 21 Cal.3d 208, 214.) “The goal in providing a 

remedy for breach of the bargain is to redress the harm caused by the 

violation without prejudicing either party or curtailing the normal sentencing 

discretion of the trial judge. The remedy chosen will vary depending on the 

circumstances of each case.” (People v. Mancheno (1982) 32 Cal.3d 855, 860.) 

“The usual remedies for violation of a plea bargain are to allow defendant to 

withdraw the plea and go to trial on the original charges, or to specifically 

enforce the plea bargain.” (Id. at pp. 860–861.) 

Here, the court could not specifically enforce the parties’ agreement by 

forcing Taylor to involuntarily waive his constitutional rights and coerce a 

slow plea (or procedural agreement). Nor could it alter the agreement’s terms

over the People’s objection to become more favorable to Taylor, allowing him 

to maintain his right to confront Ashlee and Will at the bench trial. (See 

People v. Stamps (2020) 9 Cal.5th 685, 701.) 

Under the circumstances, the court could allow the People to withdraw 

from the agreement and restore the parties to their status quo. (See People v. 

Collins, supra, 21 Cal.3d at pp. 214–215 [“when the defendant withdraws his 

guilty plea or otherwise succeeds in attacking it, counts dismissed pursuant 

to a plea bargain may be restored”], citing In re Sutherland (1972) 6 Cal.3d 

666, 672 [“Since by granting relief we are in effect permitting defendant to 

withdraw his guilty plea, the ends of justice require that the status quo ante

be restored by reviving the four dismissed counts”]; see also People v. Cantu
16

(2010) 183 Cal.App.4th 604, 607 [before defendant pleads guilty or otherwise 

detrimentally relies on a bargain, the People may withdraw from it].) 

II. Section 871.5

Taylor argues that the trial court lacked jurisdiction to allow the People 

to reinstate Taylor’s prior strikes, and add new strikes, via a new 

information. Taylor argues the People failed to file a timely motion pursuant 

to section 871.5. Taylor also relies on People v. Dethloff (1992) 9 Cal.App.4th 

620 (Dethloff).

Section 871.5 provides in relevant part: “(a) When an action is 

dismissed by a magistrate pursuant to Section 859b, 861, 871, 1008, 1381, 

1381.5, 1385, 1387, or 1389 of this code . . . or a portion thereof is dismissed 

pursuant to those same sections which may not be charged by information 

under Section 739, the prosecutor may make a motion in the superior court 

within 15 days to compel the magistrate to reinstate the complaint or a 

portion thereof and to reinstate the custodial status of the defendant under 

the same terms and conditions as when the defendant last appeared before 

the magistrate. [¶] (b) Notice of the motion shall be made to the defendant 

and the magistrate. The only ground for the motion shall be that, as a 

matter of law, the magistrate erroneously dismissed the action or a portion 

thereof.” (§ 871.5, subds. (a), (b).) 

Section 871.5 does not appear to apply to the facts here. First, the trial 

court had not “erroneously dismissed the action or a portion” of it. Second, 

the strikes could also be (and were) alleged by information. (See § 871.5, 

subd. (a) [section 871.5 applies when part of an action “is dismissed . . .

pursuant to [section 1385 and other stated] sections which may not be 

charged by information”], italics added.) Third, in addition to re-alleging the 

three dismissed strikes, the People alleged two new strikes in their new 
17

information. Taylor does not argue that adding these strikes was barred by 

section 871.5.4

Neither section 871.5 nor Dethloff concerns the trial court’s jurisdiction

to remedy a defendant’s breach of an agreement with the People, which does 

not depend on specific statutory authority. (See People v. Collins (1996) 45 

Cal.App.4th 849, 863–864.) Further, the Dethloff decision is distinguishable 

because the charges at issue had been dismissed due to insufficient evidence 

at a preliminary hearing. (See Dethloff, supra, 9 Cal.App.4th at p. 623.) The 

court did not hold that the People must use a section 871.5 motion to seek 

reinstatement of strikes dismissed under section 1385, as opposed to realleging those strikes in an amended information. In sum, the trial court 

correctly interpreted the parties’ agreement and provided an appropriate 

remedy when it became apparent that either the parties had never had a 

meeting of the minds or else that Taylor had repudiated the agreement.

III. Striking Strikes in Furtherance of Justice

“[A] trial court’s refusal or failure to dismiss or strike a prior conviction 

allegation under section 1385 is subject to review for abuse of discretion.”

5 

4 Taylor did not oppose the addition of the two new strikes below and 

did not address it in his opening brief on appeal. In his reply brief, he argues 

that charging the new strikes was improper only in response to the People’s 

argument that any error in reviving the three dismissed strikes was 

harmless, which we need not address. Even if section 871.5 somehow applied 

here, the People still would have alleged and proved three strikes for 

purposes of sentencing under section 667 (the strike that had never been 

dismissed plus the two new strikes in the new information).

5 Taylor did raise the interests of justice under section 1385 in his 

motion for new trial. We decline to find that he forfeited this argument by 

virtue of the fact that his brief focused primarily on the jurisdictional 

question under section 871.5. Even if he had forfeited the argument, we 

could still reach the merits. (See People v. Monroe (2022) 85 Cal.App.5th 393, 

400.)
18

(People v. Carmony (2004) 33 Cal.4th 367, 375.) The discretion of a trial 

judge “ ‘ “is subject to the . . . legal principles governing the subject of its 

action, and to reversal on appeal where no reasonable basis for the action is 

shown. [Citation.]” ’ ” (People v. Jacobs (2007) 156 Cal.App.4th 728, 740, 

quoting Westside Community for Independent Living, Inc. v. Obledo (1983) 

33 Cal.3d 348, 355.) “ ‘[T]he ‘legal principles that govern the subject of 

discretionary action vary greatly with context’ ” and derive from the “ 

‘statutes under which discretion is conferred.’ ” (Jacobs, at p. 737.)

The Three Strikes law “creates a strong presumption that any sentence 

that conforms to [its] sentencing norms is both rational and proper.” (People 

v. Carmony, supra, 33 Cal.4th at p. 378.) But there are extraordinary 

circumstances where, “ ‘in light of the nature and circumstances of his 

present felonies and prior serious and/or violent felony convictions, and the 

particulars of his background, character, and prospects, the defendant may 

be deemed outside the scheme’s spirit, in whole or in part, and hence should 

be treated as though he had not previously been convicted of one or more 

serious and/or violent felonies.’ ” (Id. at p. 377, quoting People v. Williams 

(1998) 17 Cal.4th 148, 161.) In “an extraordinary case—where the relevant 

factors described in Williams . . . manifestly support the striking of a prior 

conviction and no reasonable minds could differ—the failure to strike would 

constitute an abuse of discretion.” (Carmony, at p. 378.) Unfortunately, this 

is such a case.

The disparity between Taylor’s wrongful actions and his 25-year-to-life 

sentence is distressing in a way reminiscent of the concerns expressed about 

the shortcomings of the Three Strikes law in the days leading up to People v. 

Superior Court (Romero) (1996) 13 Cal.4th 497. Taylor’s burglary was nonviolent. He immediately returned the $800 he had stolen when confronted. 
19

Based on the record of the jury trial, his crime appears opportunistic rather 

than calculated. The security video shows that the door to Ashlee and Will’s 

room was left open when they departed, and that Taylor went in and out of 

the room slowly during the offense. When Ashlee and Will returned and 

discovered Taylor in their room, Taylor “came out of the room” and Will 

“punched him in the face.” Taylor did not hit back. Taylor went downstairs, 

leaving his belongings behind, and Will confronted him and went through 

Taylor’s bags. Again, Taylor did not fight back. Will asked Taylor to empty 

all of his bags, and “he did.” Will asked Taylor what was in his pocket and 

“he pulled out the money and he gave it to [Will].” Others were present from 

the moment Ashlee observed Taylor in her room until “neighbors” of Ashlee 

and Will “start[ed] to surround [them]” as Will confronted Taylor. Ashlee and 

Will did not say they were frightened by the burglary.

While Taylor’s actions caused a conflict that could have resulted in 

others getting hurt, and while his testimony lacked any credibility, we must 

focus on “the crime actually committed, not a crime that might have 

occurred.” (People v. Avila (2020) 57 Cal.App.5th 1134, 1142.) Ultimately, 

Taylor’s behavior was not violent or threatening, and no one was hurt other 

than Taylor himself. 

We also consider Taylor’s prior strikes and personal background. The 

remoteness of the majority of his strikes—four of which occurred in 2001 or 

much earlier, including two when Taylor was a youth—is a factor in 

mitigation. (People v. Avila, supra, 57 Cal.App.5th at p. 1141.) Neither of 

Taylor’s two more recent strikes for criminal threats involved violence, and 

these occurred during a time when a probation report characterized Taylor as 

“delusional.” The record reflects that Taylor has periodically suffered from

related mental health issues since at least 2015, and likely for much longer.
20

(See id. at pp. 1143–1144.) While Taylor may have been a “career criminal” 

decades ago, his recent offenses appear uncalculated and related to his 

mental health struggles, for which he has accepted treatment over the years. 

(See id. at pp. 1144–1145.) We must also consider his age—over 60 years old 

at the time he was convicted. (See id. at p. 1144.) 

Residential burglary is a serious felony. We do not trivialize the 

feelings of “violat[ion]” that Ashlee and Will experienced in this case upon 

discovering that Taylor had “ransacked” their room and “gone through . . . 

personal belonging[s].” Still, given Taylor’s persistently non-violent behavior 

during the offense and the other circumstances discussed above, no 

reasonable person could view the Three Strikes sentence imposed here as 

just.

We observe that before Taylor derailed the anticipated bench trial, the

People and the trial court had agreed that Taylor ought not be sentenced as a 

Three Strikes offender. While the court appropriately restored the status quo 

when the People lost out on the deal they sought in exchange for dismissing 

strikes off the bat, Taylor’s assertion of his right to confrontation should not 

have so altered the interests of justice that a 12-year sentence became a 25-

year-to-life sentence.6 The trial court was not in any way bound by the failed 

agreement between Taylor and the People, but under the circumstances it 

should have sentenced him as a two-strike offender in furtherance of justice. 

The 25-year-to-life sentence was unnecessarily punitive under the 

circumstances.

6 While two of Taylor’s six prior strikes were not alleged in the 

complaint and original information, the parties and the trial court were 

aware of them at the time they agreed Taylor should be sentenced as a twostrike offender in October 2020.
21

We remand the matter for the court to resentence Taylor. We need not 

reach Taylor’s argument that the sentence violates the state constitutional 

proscription against cruel or unusual punishment. (See People v. 

Williams (1976) 16 Cal.3d 663, 667 [“we do not reach constitutional questions 

unless absolutely required to do so to dispose of the matter before us”].)

DISPOSITION

The sentence is vacated, and the matter is remanded for resentencing 

with the direction to the trial court to strike all but one of Taylor’s prior

strike convictions (leaving one under § 422) and to reconsider his sentence. 
22

_________________________

Markman, J.*

We concur:

_________________________

Stewart, P.J.

_________________________

Richman, J.

People v. Taylor (A164446)

* Judge of the Alameda Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.