Filed 6/16/16 P. v. Taylor CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067733
Plaintiff and Respondent,
v. (Super. Ct. No. SCD256085)
BYREESE DIRRELL TAYLOR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Amalia L. Meza, Judge. Affirmed.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.
McGinnis and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and
Respondent. I.
INTRODUCTION
Defendant Byreese Dirrell Taylor appeals from a judgment of conviction entered
after a jury found him guilty of attempted voluntary manslaughter and assault with a
semi-automatic firearm. Taylor challenges his convictions, asserting two main points of
error: (1) that there is insufficient evidence that he harbored the requisite intent to kill to
support his conviction for attempted voluntary manslaughter, and (2) that the trial court
erred in admitting evidence of a telephone conversation between Taylor and a gang
member in which Taylor discussed having been shot at and wanting to retaliate for the
shooting.
We conclude that neither contention has merit. We therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. Prosecution evidence
a. Evidence about the incident
At trial, evidence was presented demonstrating that Taylor was a member of the
Lincoln Park gang. At the time of the charged incident, he lived with Mark Jenkins,
another Lincoln Park member, in an area claimed by a rival gang, the West Coast Crips.
On February 12, 2014, two witnesses called 911 to report a shooting that occurred
near Taylor's home. One caller reported seeing Taylor "with the gun pointing it and
2 shooting it in broad daylight." He also saw Taylor and Jenkins chasing the victim. The
other caller later reported that he heard someone yell "West Coast" during the incident.
Police were able to see some of what had occurred on surveillance videos from a
nearby residence and an elementary school. On the video from the residence, one could
see a shirtless black man and a black woman walking westbound toward Taylor's home.
The two started to argue, but continued walking. The shirtless man turned and started
running east, followed by Jenkins and Taylor. Taylor's right hand was raised and he was
holding a gun. Taylor fired one shot, then leveled the handgun and fired several more
shots.
The video from the elementary school showed a woman running east, followed by
a man who looked like Jenkins.
At the scene, police found five shell casings. Four of the casings were found in
front of a house a few doors down from Taylor's home. The fifth was found farther
south.
In March 2014, police recovered a semi-automatic handgun from a backpack
found in a car driven by Hayley Singer, Taylor's girlfriend. The backpack also contained
a court document with Taylor's name on it.
Taylor was arrested later that day. The following day, a detective interviewed
Taylor about the shooting near his home. Taylor said that he knew nothing about the
shooting, and that he had been in school at that time. Taylor claimed that he had found
the handgun in Cholla View Park about two weeks prior to being arrested. According to
3 Taylor, he kept the gun for personal protection, because he had been shot at in the past
and was afraid of being attacked again.
Later testing of the gun and the spent shell casings found at the scene of the
February 12, 2014 incident indicated that those shells had been fired from Taylor's gun.
b. Gang evidence
Detective Rudy Castro, a police gang expert, testified that he believed Taylor was
an active member of the Lincoln Park gang. Taylor's gang moniker was "Rude Boy."
Castro based his opinion on Taylor's contacts with police, his association and
conversations with gang members, his use of gang hand signs, and his wearing of gang-
related clothing.
Castro explained the importance of respect in gang culture, and the principle that if
a gang member is disrespected in some way, he would be expected to retaliate. The
failure to retaliate would be perceived as weakness by other gang members.
Castro opined that, given hypothetical facts similar to the facts underlying the
incident at issue in this case, the person who committed the charged offenses would have
done so for the benefit of, or in association with, a gang. The offenses also would
promote, further, or assist criminal conduct by gang members.
Although the victim in this case never came forward, Castro explained that among
gang members, there is an unwritten rule that no gang member is to cooperate with law
enforcement.
4 c. Evidence related to a telephone call between Taylor and a gang member regarding a prior drive-by shooting in which Taylor was apparently a victim
On August 27, 2013, Taylor was apparently the victim of a drive-by shooting in
West Coast Crips territory. Taylor did not report the shooting to police. However, he did
call Justin Anderson, a Lincoln Park gang member, and discussed the shooting.
Taylor told Anderson what had happened, and said that he wanted to retaliate.
Taylor and Anderson talked about who might have done the shooting, and Anderson
suggested that it was possible that it might have been a fellow Blood gang member who
had mistaken Taylor for a West Coast Crip.
2. Defense evidence
Taylor testified in his own defense. According to Taylor, on February 12, 2014,
he was relaxing inside his home with a semi-automatic gun in his waistband. The gun
contained 10 shell cases. Taylor heard people arguing outside and then heard someone
say, "I'm going to kill you." Taylor heard a gunshot and then heard a woman scream.
Taylor went outside and saw his "relative in a perilous position that would have
made anybody wonder if they're witnessing the death of their family member."
According to Taylor, Jenkins, his relative, was on the ground, and a shirtless man was on
top of Jenkins. Taylor thought that the shirtless man had a gun, based on the gunshot
Taylor had heard. Taylor ran toward the man. When Taylor got within approximately 30
feet, the man "took off." Taylor testified, "I ran him off, and I negligently discharged a
firearm in a way to where no one would be hurt." According to Taylor, he chased the
man, and "only discharged the firearm until the danger had passed."
5 Taylor testified that he did not intend to kill the victim, and said that he had not
aimed at the victim. He conceded that he shot in the direction of the victim, contending
that he "wanted it to seem like [he] was shooting in [the victim's] direction" in order to
ensure that the victim ran away.
Taylor testified that he did not hear anyone yell "West Coast" or other gang name.
He also said that even if someone had yelled out a gang name, it would not have mattered
to him because he was not an "active gang member." He associated with gang members,
but photographs of him throwing gang signs were done as a joke, to make fun of family
members of his who were in the Lincoln Park gang.
After the shooting, Taylor went to his girlfriend's house. Taylor did not report the
incident to police, and he later lied to the police during an interview because he did not
think they would believe his account because he is black, he had fired the gun, and he did
not know who had fired the initial gunshot that he had heard.
During his testimony at trial, Taylor discussed the telephone conversation he had
with Anderson. Taylor testified, "I had got shot at, and I wanted something to be done,
but although thinking of the repercussions, I didn't go through with whatever we had said
over the phone. I had just went to the gym and worked out the steam that I had inside of
me."
Character witnesses testified that Taylor was peaceful, honest, respectful, and
compassionate, and said that he did not have a reputation for violence.
6 B. Procedural background
Taylor was charged with one count of attempted murder (Pen. Code,1 §§ 187, 664;
count 1), and one count of assault with a semi-automatic firearm (§ 245, subd. (b); count
2). As to both counts, the information alleged that Taylor committed the offenses for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that he personally used a
firearm in the commission of the offenses (§ 12022.5, subd. (a)).
On January 29, 2015, a jury found Taylor guilty on count 2 as charged, and also
found him guilty of attempted voluntary manslaughter, a lesser included offense to the
charge in count 1. The jury found the personal use of a firearm enhancements true, but
found not true the allegation that Taylor had committed the offenses for the benefit of a
gang.
The trial court sentenced Taylor to an aggregate term of ten years in state prison,
which included the middle term of six years on count 2, and an additional middle term of
four years for the personal use of a firearm enhancement. The trial court stayed Taylor's
sentence on count 1 and the corresponding enhancement pursuant to section 654.
Taylor filed a timely notice of appeal.
1 Further statutory references are to the Penal Code unless otherwise indicated. 7 III.
DISCUSSION
A. Sufficient evidence supports the verdict
Taylor contends that there is insufficient evidence to support his conviction for
attempted voluntary manslaughter. According to Taylor, the evidence cannot support a
conclusion that he harbored an intent to kill.
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a
limited one. ' "The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable,
credible, and of solid value, nonetheless it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the facts on which
that determination depends. [Citation.] Thus, if the verdict is supported by substantial
evidence, we must accord due deference to the trier of fact and not substitute our
evaluation of a witness's credibility for that of the fact finder." ' " (People v. Smith (2005)
37 Cal.4th 733, 738-739 (Smith).)
The offense of attempted voluntary manslaughter requires the specific intent to
kill. (People v. Montes (2003) 112 Cal.App.4th 1543, 1545.) Because there is rarely
8 direct evidence of a defendant's state of mind, a defendant's intent may be proven by
circumstantial evidence. (People v. Mincey (1992) 2 Cal.4th 408, 433.)
" ' The act of firing toward a victim at a close, but not point blank, range "in a
manner that could have inflicted a mortal wound had the bullet been on target is
sufficient to support an inference of intent to kill." ' " (Smith, supra, 37 Cal.4th at p.
741.)2 The firing of a gun multiple times in the direction of a victim, even from "a
distance away," can also constitute sufficient evidence of an intent to kill. (People v.
Ramos (2011) 193 Cal.App.4th 43, 48 [evidence that defendant fired seven shots toward
the victim from "a distance away" as victim ran away was sufficient to support jury's
finding of intent to kill].)
In this case, the evidence demonstrated that Taylor shot toward the victim five
times as the victim ran away from Taylor and Taylor chased him. While the man was
running, Taylor had his right hand raised. He fired one shot, and then leveled the
handgun and fired four more shots in the direction of the victim. This set of
circumstances is sufficient to support the inference that Taylor intended to kill the victim.
The fact that Taylor testified that he did not intend to kill the victim, and that he
specifically shot in a manner not intended to hit the victim, does not require us to
conclude that there was insufficient evidence to support the jury's finding of an intent to
2 The Smith court also commented, " ' "The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does . . . poor marksmanship necessarily establish a less culpable state of mind." ' " (Smith, supra, 37 Cal.4th at p. 741.) 9 kill. The jury was free to reject Taylor's self-serving testimony, as it apparently did, and
conclude instead that Taylor indeed harbored an intent to kill the victim, based on the
video and physical evidence that demonstrated that Taylor shot multiple times at a victim
who was running away from him.
B. The trial court did not abuse its discretion in admitting in evidence of a recording of Taylor's telephone conversation with a known gang member
Taylor contends that the trial court's admission of a telephone conversation
between him and a known gang member was an abuse of discretion under Evidence Code
sections 1101 and 352.
1. Additional background
As part of an unrelated investigation, federal law enforcement officers recorded a
telephone conversation between Taylor and Justin Anderson, a Lincoln Park gang
member, that occurred on August 27, 2013, approximately six months prior to the
charged incident. In the recording, Taylor can be heard telling Anderson that someone
tried to shoot him in front of his house. Taylor then told Anderson that he wanted to
retaliate for the shooting. Anderson and Taylor discussed which gang might have been
responsible for the shooting, and Anderson suggested that the shooter could have been a
member of Taylor's own gang, or an ally of his gang, speculating that it was possible that
the person had mistaken Taylor for a West Coast Crip gang member because of where he
lived. Anderson then said that he had to go, and the conversation ended.
The prosecution sought to admit this conversation both to establish that, despite
the defense theory that Taylor had simply been acting in defense of another, Taylor had a
10 motive to commit the charged offense, and also to demonstrate that the offense was gang-
related.
Defense counsel objected to the admission of this recording, arguing that the
conversation was not relevant to the issues to be decided by the jury. Defense counsel
also argued that the facts of the August 27, 2013 shooting were not clear, and that
Taylor's comments about his desire to retaliate were unduly inflammatory.
The trial court concluded that the conversation was relevant, and that its probative
value outweighed any prejudice that might flow from its admission.
A recording of the telephone conversation between Taylor and Anderson was
played for the jury. San Diego Police Officer Juan Cisneros and Sergeant Van Cruz
explained some of the gang terminology used by Taylor and Anderson during their
conversation.
2. Analysis
a. The trial court did not abuse its discretion under Evidence Code section 1101, subdivision (b)
Taylor first contends that the telephone conversation should not have been
admitted because it was improper evidence of his bad character and was used by the
prosecutor to suggest that Taylor had a disposition to commit crime, in violation of
Evidence Code section 1101.
As an initial matter, we note that Taylor has forfeited this claim by failing to
object on these grounds at trial. (See People v. Doolin (2009) 45 Cal.4th 390, 434
11 [failure to object on Evidence Code section 1101, subdivision (b) grounds constitutes
forfeiture of contention on review].)
The claim is also without merit. Section 1101, subdivision (a) precludes
admission in evidence of a defendant's prior bad acts if the inference sought to be
established is that the actor, because of the prior bad acts, had the propensity to commit
criminal acts in general, or criminal acts of a particular class. (People v. Thompson
(1980) 27 Cal.3d 303, 317.) However, Evidence Code section 1101, subdivision (b),
allows admission of evidence of a "crime, civil wrong, or other act when relevant to
prove some fact (such as motive, . . . [or] intent . . . ) other than [the defendant's]
disposition to commit such an act."
Taylor's conversation with Anderson was admitted to show Taylor's motive in
shooting at the victim, and as being relevant to the question whether he harbored the
requisite intent to kill that was at issue with respect to the attempted murder charge. This
was permissible. It is clear that the court may allow the prosecution to introduce a
defendant's "bad acts" when they are offered to prove some disputed fact, and not merely
the defendant's general bad character or propensity to commit crime. (People v. Daniels
(1991) 52 Cal.3d 815, 857 (Daniels) ["As long as there is a direct relationship between
the [bad act] and an element of the charged offense, introduction of that evidence is
proper"].)
In Daniels, the Supreme Court concluded that a trial court did not err in admitting
evidence of the circumstances of a bank robbery that had occurred two years prior to the
charged offense, which involved the murders of two police officers. (Daniels, supra, 52
12 Cal.3d at p. 856.) The evidence admitted at trial regarding the prior bank robbery
included the defendant's flight, the police pursuit, and the exchange of gunfire that left
the defendant "crippled." (Ibid.) The testimony about those circumstances had been
admitted "to show motive—that defendant killed the police officers in revenge for his
own injuries—and intent to kill." (Ibid.) According to the Supreme Court, this was
proper under Evidence Code section 1101 because there was "a direct relationship
between the police rendering defendant a paraplegic and defendant murdering the officers
in retribution." (Daniels, at p. 857.)
The discussion of retaliation between Taylor and Anderson in this case was
somewhat ambiguous because it was not clear to Taylor who had shot at him, and, thus,
against whom he wanted to retaliate. However, the fact that he expressed his desire to
retaliate was relevant to a determination of whether Taylor was simply attempting to
defend Jenkins, or, rather, whether he intended to kill the victim as a result of a violent
gang confrontation. We therefore conclude that the evidence of Taylor's telephone
conversation with Anderson was admissible under Evidence Code section 1101.
b. The trial court did not abuse its discretion under section 352
Taylor also contends that even if the telephone conversation was relevant and
admissible under Evidence Code section 1101, the trial court should have excluded
evidence of the conversation pursuant to Evidence Code section 352 because it was
unduly prejudicial and insufficiently probative of his guilt with respect to the charged
offenses.
13 "A trial court may exclude otherwise relevant evidence when its probative value is
substantially outweighed by concerns of undue prejudice, confusion, or consumption of
time." (People v. Scott (2011) 52 Cal.4th 452, 490 (Scott).) " ' "Evidence is not
prejudicial, as that term is used in a [Evidence Code] section 352 context, merely because
it undermines the opponent's position or shores up that of the proponent. The ability to
do so is what makes evidence relevant." ' " (Ibid.) Thus, evidence may be excluded
under Evidence Code section 352 if it " ' " ' "uniquely tends to evoke an emotional bias
against the defendant as an individual and which has very little effect on the issues." ' " ' "
(Scott, at p. 491.) Evidence should be excluded as unduly prejudicial when " ' "it is of
such nature as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is relevant, but to reward or
punish one side because of the jurors' emotional reaction." ' " (Ibid.)
On appeal, we review the trial court's ruling on the admissibility of evidence for
abuse of discretion. (Scott, supra, 52 Cal.4th at p. 491.) The trial court has broad
discretion in determining what evidence is relevant. (People v. Harris (2005) 37 Cal.4th
310, 337.)
We conclude that the trial court did not abuse its discretion in determining that the
evidence of Taylor's telephone conversation with Anderson was more probative than
prejudicial. The conversation was not uniquely inflammatory, and was unlikely to have
14 evoked an emotional bias against Taylor. We therefore reject Taylor's contention that the
evidence should have been excluded pursuant to Evidence Code section 352.
c. There was no due process violation resulting from the admission of this evidence
Having found no state law error, we also reject Taylor's federal constitutional
claim that the admission of this evidence constituted a violation of his right to due
process.
Application of the ordinary rules of evidence under state law generally do not
violate a criminal defendant's federal constitutional rights; trial courts retain the intrinsic
power under state law to exercise discretion to control the admission of evidence at trial.
(People v. Lawley (2002) 27 Cal.4th 102, 155.) "[T]he state has power to regulate the
procedures under which its laws are carried out, and a rule of evidence in this regard 'is
not subject to proscription under the Due Process Clause unless "it offends some
principle of justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental." ' " (People v. Fitch (1997) 55 Cal.App.4th 172, 178-179,
quoting Patterson v. New York (1977) 432 U.S. 197, 201-202.) The admission of the
challenged evidence in this case was permissible under state rules of evidence, and it did
not rise to the level of a due process violation.
15 IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.