People v. Weed, B301436

CourtCalifornia Court of Appeals
Writing for the CourtSEGAL, J.
PartiesTHE PEOPLE, Plaintiff and Respondent, v. DAGAN NOKSI WEED, Defendant and Appellant.
Decision Date19 May 2022
Docket NumberB301436

THE PEOPLE, Plaintiff and Respondent,
v.

DAGAN NOKSI WEED, Defendant and Appellant.

B301436

California Court of Appeals, Second District, Seventh Division

May 19, 2022


NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County, No. TA143782 Michael J. Schultz, Judge. Affirmed as modified with directions.

Julie Caleca, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, William H. Shin and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.

SEGAL, J.

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INTRODUCTION

Dagan Noksi Weed appeals from the trial court's order revoking his probation and imposing a five-year prison sentence the court had previously suspended. Weed and the prosecutor negotiated the five-year sentence as part of a plea agreement. The trial court found Weed willfully violated the terms of his probation when he took two cars belonging to his wife, Christina Payano, and hit Payano with a backpack and kicked her in the face while taking one of the cars.

Weed argues substantial evidence did not support the trial court's finding he violated the terms of his probation because Payano testified at the probation violation hearing she lied to the police about the physical altercation. He also argues any violation was not willful because he believed he had permission to drive the cars. Finally, Weed argues we should strike the two 1-year sentence enhancements the trial court imposed under Penal Code former section 667.5, subdivision (b), [1] because Senate Bill No. 136 (2019-2020 Reg. Sess.), which limits that enhancement to prior prison terms for sexually violent offenses, applies retroactively to his sentence. Weed asserts the rest of his sentence under the plea agreement remains intact.

In our original opinion, we concluded that substantial evidence supported the trial court's order revoking probation and that Senate Bill No. 136 applied to Weed's sentence. We agreed with Weed that we should dismiss the one-year enhancements but disagreed with him that the rest of his sentence under the plea agreement remained intact. We directed the trial court to dismiss Weed's two 1-year sentence enhancements and to allow

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the parties to withdraw from the plea agreement and seek the trial court's approval of a new sentence.

Weed petitioned for review. Weed argued that, because this case presented the same issues as those pending in People v. Hernandez (2020) 55 Cal.App.5th 942 (Hernandez), vacated and cause transferred for reconsideration, Dec. 22, 2021, S265739, the Supreme Court should grant review and "hold this petition behind Hernandez." The Supreme Court granted review and deferred briefing pending its decision in Hernandez.

Before the Supreme Court issued a decision in Hernandez the Governor signed Senate Bill No. 483 (2021-2022 Reg. Sess.), which addressed the issues Weed presented in his petition for review.[2] The Supreme Court subsequently transferred Weed's case back to this court with directions to vacate our original decision and reconsider the cause in light of Senate Bill No. 483. We now vacate our original opinion and accept the People's concession that under Senate Bill No. 483 we should dismiss Weed's enhancements under former section 667.5,

subdivision (b), and leave intact the remainder of his sentence under the plea agreement.

FACTUAL AND PROCEDURAL BACKGROUND

A. Weed Pleads No Contest to False Imprisonment by Violence, and the Trial Court Places Him on Probation

The People charged Weed with false imprisonment by violence (§ 236), willful infliction of corporal injury resulting in a

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traumatic condition on a spouse (§ 273.5, subd. (a)(1)), and battery committed against a spouse or person with whom the defendant is cohabiting (§ 243, subd. (e)(1)). The People also alleged that Weed had one prior serious or violent felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12) and that he served two prior prison terms within the meaning of section 667.5, subdivision (b).

Weed pleaded no contest to false imprisonment by violence and admitted the two prior prison term allegations, and the court dismissed the other charges and allegations pursuant to the plea agreement. On August 13, 2018 the court imposed and suspended execution of a five-year prison sentence, consisting of a three-year term for false imprisonment by violence and two 1-year enhancements under section 667.5, subdivision (b), and placed Weed on probation for five years. The terms and conditions of Weed's probation included that he maintain "peaceful contact" with Payano. The court explained: "As to . . . Payano, at her request, there will be no restraining order. It simply will be a no-harm, have-friendly-visits [order]. You will not do something stupid."

B. Weed Takes Payano's Lexus Without Permission

On April 5, 2019 Payano contacted the Los Angeles Police Department to report a carjacking and told Officer David Torres that, while she was moving her Lexus for trash collection day, Weed approached the passenger-side window and tried to take the keys from the car. Payano stated that, when she got out of the car to talk to Weed, he hit her three times with a backpack. Payano fell to the ground, and Weed kicked her in the mouth. Weed drove away in the Lexus. Payano showed Officer Torres a

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cut on the inside of her lip she said she received when Weed kicked her. Officer Torres testified Payano was crying and visibly upset.

C. Weed Takes Payano's BMW Without Permission

On August 15, 2019 Payano reported to the police that the previous day Weed had again taken a car from her, this time a BMW, without permission. Later that day, Officer Joseph Braun responded to a radio call concerning a possible assault with a deadly weapon. Officer Braun drove to the scene, and Payano flagged him down from her car. Payano told Officer Braun that she had just returned from the police station and that Weed was "over there" near a BMW. Officer Braun saw Weed and detained him. After Officer Braun read Weed his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694], Weed stated he took the keys to the car the previous day from a hook in Payano's home. Weed stated that Payano called him numerous times asking him to return the car, but that he refused because he was with a friend.

Payano called Weed's probation office and spoke with Probation Officer Jamaal Hawkins. Payano told Officer Hawkins that Weed stole her BMW, which was in her mother's name, and that she was going to file a report at the police station. Payano subsequently went to the probation office, spoke again with Officer Hawkins, and told him she "had a tussle" with Weed earlier in the day when she tried to take the car keys from him. Payano also told Officer Hawkins the police had arrested Weed. Payano explained that, given her small stature, she was "in no . . . situation to be getting into physical altercations" with Weed and that she was afraid of him.

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D. The Trial Court Revokes Weed's Probation and Sets a Probation Violation Hearing

On August 29, 2019 the trial court, after considering a probation report and a motion by the prosecutor, revoked Weed's probation. The trial court remanded Weed to custody and set a probation violation hearing.

E. Payano Recants at the Probation Violation Hearing

Officers Torres, Braun, and Hawkins testified at the probation violation hearing, as did Payano. Payano confirmed that on April 5, 2019 she called the police because Weed took her Lexus without her consent and did not return it when she asked him. Payano stated that Weed had a key to the Lexus, that she did not see Weed take the car, and that there was no physical altercation on that day. Payano also testified that she lied to the police about the assault because she was angry Weed had taken her car without permission and that most of her statements to the police were not true.

Payano also confirmed that on August 15, 2019 she went to the police station and reported that Weed had taken her car the previous day without permission and refused to return it. Payano further confirmed that, after she left the station, she flagged down a police car she saw driving toward her mother's home and told the officers Weed had taken her car without her permission. Payano, however, denied she had a physical altercation with Weed and said she did not remember anything else she told the police that day. Payano stated that she went to Weed's probation office to discuss Weed's mental health issues with his probation officer and that she told Officer Hawkins that Weed had taken her car without her consent. Payano testified

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that she exaggerated and lied about the physical altercation and that she loved Weed and did not want anything bad to happen to him.

F. The Trial Court Revokes Weed's Probation and Imposes the Five-year Sentence

The trial court found by a preponderance of the evidence Weed had willfully violated the terms of his probation. The trial court found that Payano's testimony at the hearing was designed to convince the court Weed was "not violent or a domestic abuser" and had not been violent toward or abused her in the past. The court found her testimony Weed had not engaged in domestic violence was "clearly impeached" and was not credible. The trial court also found that Weed took the cars without consent and that Weed used force to take the Lexus by hitting Payano with the backpack and kicking her.

The trial court revoked Weed's probation and imposed the five-year prison term. The court stated it was concerned about the safety of Weed, those who loved him, and the community.

G. Weed Appeals, and This Court Affirms with Directions

In his original...

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