P. v. Taylor

P. v. Taylor

Filed 8/5/08 P. v. Taylor CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL SCOTT TAYLOR, Defendant and Appellant.

B203586 (Los Angeles County Super. Ct. No. GA067856)

APPEAL from a judgment of the Superior Court of Los Angeles County, Candace J. Beason, Judge. Affirmed as modified.

Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant Michael Scott Taylor of, among other things, kidnapping his ex-girlfriend. On appeal, he contends there is insufficient evidence of force or fear to support his conviction for kidnapping. He also contends that the admission of evidence of his parole status, membership in a gang, and drug use was prejudicial error. We hold that there is sufficient evidence of kidnapping, and that any error in admitting the challenged evidence was not prejudicial. We therefore reject these contentions, although we modify defendants sentence to correct an error. We affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

I.Factual background.

A. Prosecutions case.

Kathleen Diradoorian and defendant dated for a couple of months in 2006, but, as of November 26, 2006, Diradoorian considered the relationship over. Defendant was pursuing someone else, and Diradoorian did not want to have anything to do with him.

On November 26, 2006, Diradoorian was sharing a motel room with Andrew McIntosh because they were both low on cash. At about 2:30 in the morning, McIntosh was in the bathroom. Diradoorian was asleep. Defendant broke open or kicked in the motel room door. Diradoorian asked him,  What happened? Whats going on?  Defendant told her to get her stuff and that they had to go. When McIntosh heard the smashing sound, he opened the bathroom door. McIntosh saw what looked like the barrel of a shotgun under defendants jacket, although Diradoorian did not see it. Although McIntosh may have told an officer that defendant pointed the shotgun at him, McIntosh, at trial, said that defendant did not point the gun at him.^[1] McIntosh asked defendant,

 Do you want me to stay in here?  McIntosh said at trial that defendant just looked at him, but McIntosh told a police officer that defendant told him to stay in the bathroom. Frightened, McIntosh closed the bathroom door. Diradoorian left with defendant.

Although it scared her that defendant kicked down the door, Diradoorian said at trial that she was not afraid of defendant. Rather, she thought something had happened. She was not afraid that if she refused to go with defendant something bad might happen to her, but she was worried that McIntosh and defendant might get into a fight.

Defendant walked Diradoorian to a RV motor home, which she had never seen before. He started the RV with a screwdriver or knife. After defendant started driving, he laid the shotgun on his lap. Diradoorian denied at trial that she was afraid defendant would shoot her. In fact, defendant showed Diradoorian how to use the shotgun. But defendant also told her he did not know what he would do if he caught her with another man; he might hurt her or he would feel so bad he would hurt himself. They drove around, making several stops, until around 4:00 p.m. Whenever they stopped, defendant would tell Diradoorian to wait in the RV for him, which she did, unafraid, she said at trial, that something would happen if she disobeyed defendant. At some point, they ate together at a Ralphs.

They finally ended up at defendants apartment. Defendant immediately went to sleep in the RV. Diradoorian left,^[2]and the only reason she was afraid to leave was because of what defendant might do to himself. Although she had a cell phone with her when she left the motel, defendant broke it. She managed to get to a phone and to get her messages. After learning she was a missing person, she called her parents and she might have called the detectives assigned to the case.

Two days after these events, detectives interviewed Diradoorian. She told them that defendant kicked the motel door down, told her to leave, and threatened McIntosh. When defendant kicked down the door, she thought he might hurt her if she said anything that made him mad.^[3] Although she did not see the shotgun until they got into the RV, defendant scared her; she had never seen him act that way. And although he left the shotgun with her, defendant told her he would blow her head off if she ever slept with another man.

Christine Soteros and Debbie Swartley own the RV motor home defendant drove. It was stolen shortly before Thanksgiving 2006. Neither Soteros nor Swartley gave defendant permission to take their motor home.

At trial, the parties stipulated that defendant had suffered a previous conviction for a felony.

B. Defense case.

The manager of the motel where Diradoorian had been staying with McIntosh saw her leave with defendant. Defendant was walking in front of Diradoorian, and she was walking behind him, willingly, the manager assumed. The manager did not see defendant carrying a shotgun or hear screaming or arguing.

II. Procedural background.

Trial was by jury. On August 2, 2007, the jury found defendant guilty of count 1, kidnapping (Pen. Code, 207, subd. (a));^[4]count 2, first degree burglary ( 459); count 3, assault with a firearm ( 245, subd. (a)(2)); count 4, possession of a firearm by a felon ( 12021, subd. (a)(1)); count 5, unlawful driving or taking of a vehicle (Veh. Code,  10851, subd. (a); and count 6, short-barreled shotgun or rife activity ( 12020, subd. (a)(1)). As to counts 1, 2, and 3, the jury found true the allegations that in the commission of the offenses, defendant personally used a firearm ( 12022.5, subd. (a)). As to the burglary count, the jury found that a person was present, under section 667.5, subdivision (c).

Before sentencing on October 5, 2007, defendant moved for a new trial, which the trial court denied. The trial court sentenced defendant to the high term of eight years on count 1 plus the high term of ten years for the gun enhancement under section 12022.5. The court imposed five 1-year terms under section 667.5.^[5] The trial court also imposed concurrent terms on the remaining counts and enhancements.

DISCUSSION

I. Sufficiency of the evidence.

Defendant contends there is insufficient evidence to support the force or fear element of kidnapping. We disagree.

Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping. ( 207, subd. (a).) To accomplish kidnapping, the victims movement must be accomplished by force or any other means of instilling fear. (People v. Majors (2004) 33 Cal.4th 321, 326.) The force used need not be physical, rather the  movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances.  (Id. at p. 327.) To determine whether there is substantial evidence of force or fear, we do not resolve evidentiary conflicts, but  view the evidence in a light most favorable to  the People,  and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.  [Citations.] (Id. at p. 331.)

Defendant argues that there is insufficient evidence of the force or fear element because he never used physical force or a threat of force to compel Diradoorian to go with him. Rather, Diradoorian went with him because she wanted to avoid a confrontation between defendant and McIntosh. To support this interpretation of the events, defendant points to aspects of the case that he calls totally inconsistent with a kidnap, for example, Diradoorian did not see the shotgun while she was in the motel room, defendant left Diradoorian alone several times thereby affording her a means of escape, and defendant showed Diradoorian how to use the shotgun.^[6]

Regardless of whether these facts are inconsistent with a kidnapping, there are other ample facts that are entirely consistent with a kidnapping. For example, at 2:30 a.m., defendant kicked in the motel room where Diradoorian was staying. He had a gun, which McIntosh said defendant pointed at him. Defendant then ordered Diradoorian to get her stuff and told her they had to go. Although Diradoorian testified at trial that she merely thought something bad had happened and defendant needed her, the jury was entitled to believe that she was in fact afraid of defendant based on these facts alone. Indeed, the jury could have simply credited Diradoorians statement to detectives that she thought defendant might hurt her if she said anything that made him mad.

Defendant, however, suggests that Diradoorians failure to flee despite seeming opportunity to do so and access to the shotgun evidence a lack of force or fear. But there was also evidence that Diradoorian may not have felt free to leave, despite seeming opportunity: Defendant broke her cell phone, he drove with the shotgun in his lap, he told her he would blow her head off if she saw another man, and Diradoorian waited until defendant was asleep to leave. In any event, regardless of whether Diradoorian stayed with defendant willingly at some point after they left the motel room, the kidnapping was complete once defendant moved her out of motel room and started driving around with her. Kicking in a motel room while armed with a shotgun, ordering your girlfriend or ex-girlfriend to get her things and to accompany you, and driving her around for hours in a stolen motor home is, under the applicable standard of review, sufficient evidence to support a conviction for kidnapping.

II. Admission of evidence of defendants gang and parole status and drug use.

A. Additional facts.

Before opening statements, the prosecutor said he wanted to introduce statements Diradoorian made during a videotaped interview with detectives regarding defendants parole status and prior convictions. The prosecutor said he was not offering the evidence for the truth of the matter. Instead, the evidence went to Diradoorians mindset with this person in her hotel room.

Defense counsel objected under Evidence Code section 352, stating that the evidence was prejudicial. The trial court responded that because one of the charges was felon in possession of a firearm, the jury would find out defendant had a prior felony conviction, and [i]n my experience, a lot of times jurors start speculating that things are worse than they were in fact. I mean, they could start speculating that sexual predator, a murder, a torturer, all sorts of things. So you have to take that into account in this. The court also asked if the videotape could be sanitized, and if just one or two sentences were at issue. The prosecutor said that Diradoorian did not go on and on and its not repeated several different times. Its nothing like that.

The prosecutor then mentioned that Diradoorian also identified some of defendants tattoos during her interview. Defense counsel clarified that defendant had  SS  and  Predator  tattoos. Counsel argued that the evidence would be very prejudicial to defendant, and it was not relevant to identification because there was no dispute that Diradoorian and defendant knew each other. The court responded that [i]dentity is always an issue even if you admit it. The prosecutor added that the evidence, in addition to going to identity, went to Diradoorians state of mind, if she is with some guy who has Predator on his chest. Defense counsel pointed out that Diradoorian had been asked during the interview if defendant was a White suprem[ac]ist from jail, to which she responded, I guess.

After reviewing the transcript of the interview, the trial court ruled that the entire interview could come in, but that the court would read a limiting instruction. Defense counsel restated his objection under Evidence Code section 352.

At trial, the videotape was played for the jury. During the interview, Diradoorian said she met defendant two or three years ago and they went out a few times, but then I guess he, uh, he went to prison went to jail, I didnt and he start writing me letters and then when he got out I start seeing him a little . . . .^[7] Later, she said that defendant had been staying with his friend since he got out of prison. She reiterated that they had seen each other a few times and then he went to prison I guess, for eighteen months . . . . When asked when he went to prison and for what, Diradoorian said he went to prison in June for I guess he had drugs and, um, weapons and he was in a stolen car . . . . She said he is currently on parole and that hes got a warrant for failing to show.

She also made comments about defendants drug use. She twice said she thought that on the day of the kidnapping defendant was coming off of meth. She also said, I think he . . . shoots it sometimes. Ive never seen him do it but I know the place where he stays and people were doing that and that was one of the things.

When asked to describe defendants build, she said he was muscular, I mean in shape, cause hes been in prison I guess. She described his tattoos:

[Detective 1]: Any scars, tattoos, or birth marks he has?

[Diradoorian]: He has a tattoo SS, here and, um, on one side of the on one of his chest, and then the other says, um, predator.

[Detective 2]: Predator?

[Diradoorian]: It says put it out, it say[s] SS put it on one side, and other one says SF Thats right SFV.

[Detective 2]: SFV?

[Diradoorian]: Yeah.

[Detective 1]: SMP?

[Diradoorian]: SFV, like, umSan Fernando Valley. [] . . .[]

[Detective 2]: Was he whatlike White supremac[ist] from jail probably?

[Diradoorian]: I guess. [] . . . [] Thats what he said, uh. [] . . . []

[Detective 1]: Do you know what side the predator was on? Right side or left side?

[Diradoorian]: [Unintelligible.]

[Detective 2]: So SFV predator?

[Diradoorian]: Yeah, left side.

[Detective 1]: Left side? [] . . . []

[Detective 2]: Mm, SS on the side

[Diradoorian]: Yeah

[Detective 2]: Like lightning bulb SSs?

After playing a portion of the videotape, the trial court gave this limiting instruction to the jury: I wanted to advise you that the contents of the transcript, you know, some of the references to either organizations or tattoos, those are being allowed in for a limited purpose. Not that we dont have any information one way or the other as to whether [defendant] . . . has an affiliation with a particular group or anything of that nature, it is only because the transcript is quite long and also as to the state of mind of Ms. Diradoorian and for identification, but not for the truth of the matter as to those particular items.

After the People rested, defense counsel renewed his objection under Evidence Code section 352 to those portions of the videotape referencing defendants tattoos, parole status, drug use, weapons charges, absconding from parole, and having served time in prison. The trial court noted that it had given a limiting instruction and would do so again. The court thereafter instructed the jury before it began deliberations that Certain evidence was admitted for a limited purpose. [] At the time this evidence was admitted you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. [] Do not consider this evidence for any purpose except the limited purpose for which it was admitted. [] You may be looking a little confused by that, but that primarily had to do with some of the content of the interview with Ms. Diradoorian. At the time I indicated that it was allowed for her state of mind.

B. Admission of the evidence was not prejudicial.

Defendant objected to the admission of this evidence under Evidence Code section 352. Under section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The weighing process under section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial courts exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. [Citations.] The [trial] courts exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value. [Citation.] (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 -1315.)

Under this standard of review, we agree that some of the challenged evidence should have been excluded, namely, the gang evidence. Certainly, gang evidence is admissible if it is logically relevant to some material issue in the case. (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) But where, as here, a gang enhancement is not alleged, evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) It is inadmissible if introduced to show a defendants criminal disposition or bad character. (Avitia, at p. 192.)

We do not see to what material issue defendants tattoos and his status as a White supremacist was relevant in this case. The prosecutor argued that the evidence was relevant to identity and to the victims state of mind. But there was no issue as to identity. Diradoorian and McIntosh clearly identified defendant, and there was no dispute that he was the person who entered their motel room and with whom Diradoorian left. Diradoorian never said she recognized defendant because she saw his SS and Predator tattoos. And although we agree with the general premise that a victims knowledge of the defendants criminal history or gang status may be relevant to show an element of fear, no connection was ever drawn between this evidence and Diradoorians state of mind. To justify admission of references to such inflammatory things as an SS tattoo and the defendants status as a White supremacist on a bare assertion it goes to the victims state of mind, without more, is facile.^[8]

Similarly, evidence of uncharged offenses is prejudicial and, due to its prejudicial effect, should be admitted only if they have substantial probative value. (People v.

Ewoldt (1994) 7 Cal.4th 380, 404.) The asserted probative value here of defendants criminal history was it went to Diradoorians state of mind. Again, where there was no connection made between Diradoorians fear and her knowledge of his prior crimes, evidence of the uncharged offenses should have been excluded.

But unlike the evidence of defendants gang membership and uncharged offenses, we cannot say that Diradoorians brief references to defendants drug use were inadmissible. Diradoorian was asked if defendant was stoned during the commission of the crimes. She replied that she thought he was coming off of meth. Defendants use of drugs during or immediately prior to committing the crimes was therefore relevant to explain his conduct.

Although we conclude that evidence of defendants gang status and of the uncharged offenses should have been excluded, we nonetheless cannot find that the admission of this evidence was prejudicial under either the standard in People v. Watson (1956) 46 Cal.2d 818, 836 or in Chapman v. California (1967) 386 U.S. 18. As the trial court pointed out, defendant was charged with being a felon in possession of a firearm. Therefore, the jury was going to learn that defendant had a prior conviction in any event. Also, although references to defendants tattoos and that he was a White supremacist were inflammatory, they were, nonetheless isolated and brief. The prosecutor never referred to them in direct examination or in closing argument. The court also gave two limiting instructions with respect to this evidence. We presume the jury followed those instructions. (People v. Pinholster (1992) 1 Cal.4th 865, 925.)

Moreover, we cannot agree with defendants characterization of the evidence of kidnapping and other crimes as weak. Notwithstanding what happened after defendant left the motel room with Diradoorian, a person intending no harm does not usually kick down his ex-girlfriends door while armed with a shotgun and order her to accompany him. Nor does a person who has consent to use another persons motor home usually have to start it with a knife or screwdriver.

The length of deliberations also does not suggest that the jury had a difficult time deciding the case. After deliberating for about two hours, a juror was excused and replaced with an alternate. The newly constituted jury thereafter deliberated for about seven and one-half hours. Six hours or more of deliberation has been found to indicate that the case is not clear cut. (See, e.g., People v. Woodard (1979) 23 Cal.3d 329, 341 [issue of guilt in this case was far from open and shut, as evidenced by the sharply conflicting evidence and the nearly six hours of deliberations by the jury before they reached a verdict]; People v. Rucker (1980) 26 Cal.3d 368, 391 [jury deliberated nine hours where sole issue was defense of diminished capacity]; People v. Cardenas (1982) 31 Cal.3d 897, 907 [where prosecutions case was not overwhelming and jury deliberated for 12 hours before returning guilty verdicts, it was reasonably probable outcome would have been different in the absence of the error].)

The length of the deliberations here, over seven hours, does not necessarily indicate that the jury struggled to decide the case. There were six counts and gun enhancement allegations to consider. Also, the jury had to consider McIntoshs and Diradoorians statements to the police soon after the incident and compare those statements to their trial testimony. While the case may not have been open and shut, deliberations lasting over seven hours under these circumstances is not indicative of prejudice. We therefore conclude that any error in admitting the challenged evidence was not prejudicial.

III. The concurrent term on the burglary count must be stayed.

The trial court imposed the mid-term of 4 years plus 4 years on the gun enhancement, for a total of 8 years on count 2 for burglary. The term imposed was concurrent to count 1. Defendant contends, the People concede, and we agree that this sentence must be stayed under section 654, which precludes multiple punishments for a single act or indivisible course of counsel. (People v. Hester (2000) 22 Cal.4th 290, 294.)

DISPOSITION

The judgment is affirmed as modified. The term imposed on count 2 for burglary is stayed under section 654. The Clerk of the Superior Court is directed to modify the abstract of judgment and to forward the modified abstract of judgment to the Department of Corrections.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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^[1] McIntosh did state, in his 911 call that defendant pointed a gun at him.

^[2] She returned soon after initially leaving to get her stuff.

^[3] The following vague colloquy also occurred:

[Detective 2]: Did that, I mean did you feel like you were being kidnapped or did you feel like more like Ill just go with this guy so he doesnt bring any trouble ?

[Diradoorian]: Yeah [] . . . [] More . . . like that really.

[Detective 2]: So its not like youre like if I dont go with this, you know what Im saying, like a kidnapping?

[Diradoorian]: If I didnt go with him I was afraid hed do something, but I felt like if I did go with him he wouldnt.

^[4] All further undesignated statutory references are to the Penal Code.

^[5] Defendant had waived a jury trial on five prior convictions allegations and admitted them.

^[6] Defendant also cites a portion of the videotaped interview in which Diradoorian told detectives she went willingly with defendant that night. The night to which Diradoorian is referring, however, is not the night in question, namely, November 26, 2006.

^[7] These quotes are from the transcript of the videotape.

^[8] To the extent the trial court allowed the entire videotape to be admitted because it believed it would be too difficult to edit it, this is not a relevant factor to consider when considering the admissibility of evidence under Evidence Code section 352.