Opinion
G054565
10-03-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES RAY TAYLOR, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16WF1410) OPINION Appeal from a judgment of the Superior Court of Orange County, James E. Rogan, Judge. Affirmed. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Defendant James Ray Taylor was charged by information with one count of attempted murder (Pen. Code, §§ 664, subd. (a) & 187, subd. (a); count 1) and one count of assault with a deadly weapon, a knife (§ 245, subd. (a)(1); count 2). As to both counts, enhancements were alleged for personally inflicting great bodily injury (§ 12022.7, subd. (a)) and personal use of a deadly weapon (§ 12022, subd. (b)(1)). Defendant's 2003 conviction of section 422 was alleged as a strike (§ 667, subds. (d) & (e)(1)), a prior serious felony (§ 667, subd. (a)(1), and a prison prior (§ 667.5, subd. (a)).
All further statutory references are to the Penal Code.
A jury acquitted defendant of the attempted murder count and its lesser included offense of attempted voluntary manslaughter, but found him guilty of assault with a deadly weapon. It also found the great bodily injury and personal use of a deadly weapon allegations to be true. In a bifurcated court trial, the court found true the allegation that defendant suffered a prior conviction for a violation of section 422 as a strike and a serious felony. The prison prior was dismissed on motion of the People.
The court imposed an eight-year state prison sentence as follows: On count 2, assault with a deadly weapon, the midterm of three years; and on the prior serious felony enhancement, a consecutive term of 5 years. The enhancements for the personal use of a deadly weapon and great bodily injury were stricken, and the court also struck the prior strike allegation, stating the "victim may have been an initiator of, or aggressor of the incident" and "defendant's criminal conduct may have been partially excusable for reasons not amounting to a defense."
Defendant timely filed a notice of appeal and we appointed counsel to represent him. Counsel did not argue against defendant, but advised the court she was unable to find an issue to argue on defendant's behalf. Defendant was given the opportunity to file written argument on his own behalf, and defendant took advantage of that opportunity by filing a five-page handwritten brief with exhibits.
We have examined the entire record, but have not found an arguable issue on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Accordingly, we affirm the judgment.
FACTS
Defendant, a 51-year-old individual who had been homeless, off and on, for about 20 years, spent the night of June 30, 2016 with his girlfriend, Kerri Gentile, walking around looking for friends and drinking cheap vodka. Around 3:00 or 4:00 o'clock in the morning of July 1, 2016, they stopped to rest in a stairwell attached to a parking structure. They chatted for a while, and Gentile asked defendant for drugs. Defendant declined, and Gentile fell asleep. When Gentile awoke, she asked again for drugs, and defendant responded "We'll see."
Tawayne Harrison, a six-foot tall African American male, came up the stairs where defendant and Gentile were resting. Harrison "said something to [Gentile and defendant] about going over to an abandoned tattoo parlor and partying." Defendant said, "No." Gentile asked Harrison whether he could get some drugs. Harrison responded that he had some cocaine. Defendant told Harrison: "We got other problems right now. Can you please leave?" Harrison sighed and went down the stairs.
Defendant was "still picking [his] stuff up at the time and the school was getting ready to open where [they] were at [and defendant] was telling [Gentile] to, let's go, you know, we have to go." Gentile went down the steps and defendant followed after finishing gathering his "stuff." Gentile got on the handlebars of Harrison's bicycle and Harrison started riding away. Defendant had a hard time carrying his own bicycle down the stairs, but then started trying to catch up. It seemed to defendant that Harrison was "trying to lose" him. Defendant was losing ground and said "Hey, slow down." "Where are you going?" "That's my girlfriend." Gentile jumped off the handlebars of Harrison's bicycle, and defendant told her, "I don't want to go with him." Harrison was angered and said, "What are you doing?" Defendant responded, "Getting my girlfriend . . . I don't even know you. She don't know you." Harrison said, "No you're not."
Harrison "threw down his bike, slammed it down, and he turned towards [defendant] and he was coming towards [defendant], and [defendant] thought it was kind of like a nasty attitude, then he got right up on [defendant]." Harrison swung at defendant, but defendant blocked the punch, and pulled out his knife. Defendant was scared, and told Harrison to "stay back. I don't need no trouble. I don't know who you are, and just going to get my girlfriend and leave." Harrison looked at the knife and walked toward defendant and "got like right in [defendant's] face." "Kind of like when Mike Tyson bit that guy's ear off." Defendant had the impression that "this guy is going to break me in two." Harrison said to defendant, "What the fuck you gonna do about it, old man?" Harrison swung again, but defendant blocked the swing, reached around and "just gave him a little jab" with the knife. Harrison jumped back and said, "You stabbed me." Defendant responded "Yeah. Sorry. You gave me no choice." Harrison rode off on his bike.
A short time later, Harrison approached a paint store and asked to use a phone to call 911 because he had been stabbed. An employee called 911. Harrison lay down on his stomach, and the employee saw that "his shirt was all bloody, as - and his pants, as well." Police arrived. Harrison described his assailant as "a white male with a white beard wearing a green U.P.S. hat, riding a bicycle, and was possibly in the company of a female." The description was immediately broadcast by the police officer.
Police Officer Austin Laverty responded to the radio broadcast and quickly found defendant, who matched the description Laverty had received on the radio, less than one mile from the reported stabbing. Sergeant Burillo soon arrived to assist. Laverty placed defendant in handcuffs and patted him down. Defendant had an empty knife sheath attached to his belt. Burrillo asked defendant where the knife was, and defendant responded, "It's in the black guy's back." At trial, defendant testified that his words were: "It's in the black bag in my backpack."
Defendant was taken to the location where Harrison was still receiving treatment. Harrison identified defendant as his assailant. As defendant was being placed in the patrol car, defendant yelled: "You fucking motherfucker, you deserve this. That's somebody's kid you're messing with." Defendant also said, "Motherfucker lucky to still be alive."
Laverty gave the Miranda warning to defendant in the patrol vehicle. Detective Heine interviewed defendant at the police station. During the interview, defendant made multiple incriminating statements.
Miranda v. Arizona (1966) 384 U.S. 436.
Harrison had suffered a stab wound in his lower left back. A CAT scan revealed a hemothorax; a "blood collection in the chest cavity around the lung." A tube was inserted into Harrison's chest cavity to drain the blood. The tube drained about 300 cubic centimeters of blood; Harrison had lost about 500 cubic centimeters of blood before being transported to the hospital. The tube was removed on July 4, 2016 and Harrison was subsequently discharged from the hospital. Harrison did not attend the trial. Both the Garden Grove police and district attorney investigators had attempted to find Harrison without success.
DISCUSSION
Counsel Suggests We Consider the "Public Safety Exception" to the Miranda Rule
To assist the court in its independent review (Anders v. California (1967) 386 U.S. 738), counsel suggested we consider whether the public safety exception to the Miranda rule is applicable to the officer's unmirandized initial question to defendant asking where his knife was, and defendant's answer, "It's in the black guy's back."
In New York v. Quarles (1984) 467 U.S. 649 (Quarles), the United States Supreme Court created a public safety exception to the familiar Miranda rule. In Quarles, a woman approached police officers and told them she had just been raped, that the man had just entered a nearby supermarket, and that the man was carrying a gun. The officers quickly apprehended the suspect and handcuffed him. He was wearing an empty shoulder holster. Before giving the Miranda warning, the officer asked the suspect where the gun was, to which the suspect responded, "'the gun is over there,'" pointing to some empty cartons. (Quarles, at p. 652.) At trial, the defendant sought to exclude the answer, citing the Miranda rule. The Supreme Court held that "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." (Quarles, at p. 657, italics added.)
Here, the court allowed the evidence of defendant's reply, relying on People v. Cole (1985) 165 Cal.App.3d 41, 52. In Cole, the defendant had entered the victim's residence carrying a knife, had put the knife to the victim's neck, and then fled. When the defendant was apprehended, the officer asked where the knife was, and the defendant told the officer he had already gotten rid of it. (Id. at pp. 46-47, 51.) The Cole court relied on Quarles, supra, 467 U.S. 649, to allow defendant's statement into evidence. (Cole, at p. 52.) There was a dissent to the Cole majority opinion, with the dissenting justice opining that he "would confine the 'public safety exception' to the Miranda rule to a factual context of a firearm in places of public at large accommodation similar to that in which the 'exception' was born." (Id. at p. 58 (dis. opn. of White, J.).) The dissent pointed out that "knives are readily accessible in the home quite apart from appellant's conduct." (Ibid.) The trial court in the instant case also expressed doubt that the Quarles exception should apply to a knife, stating: "Candidly, counsel, if this were a case of first impression, this court would consider excluding the evidence, since a discarded knife, though potentially dangerous, carries significantly less potential harm than a discarded and/or concealed firearm."
We too harbor doubts about the applicability of the Quarles exception to the facts of this case. But we need not decide the issue. Even if this evidence should have been excluded, the overwhelming body of evidence, including defendant's own inculpatory testimony at trial, renders any error in this regard harmless beyond a reasonable doubt. The issue is not reasonably arguable on appeal.
Issues Argued by Defendant
As noted, defendant also filed a supplemental brief on his own behalf, and we are required to address his arguments. (People v. Kelly (2006) 40 Cal.4th 106, 110.) But defendant's supplemental brief is rambling and difficult to follow. We address defendant's arguments as we understand them.
Defendant's first group of arguments focuses on his own view of the evidence adduced at trial, and essentially asks that we second-guess the jury. For example, he argues he was intoxicated when he was detained, and that when the officer asked where his knife was, defendant said, "It's in my black bag in my back pack." According to defendant, the officer lied when he stated defendant had said, "It's in the black guy's back."
Defendant also argues that when Harrison identified him at the in-field show-up, defendant was intoxicated, scared and upset, leading him to make statements he should not have. He asserts the police had already lied to him, the alleged victim had lied, and he was "trapped" by thoughts of being a third striker facing life in prison "for something I am not at fault for." According to defendant, the inculpatory interview at the police station "made no sense" because he was so intoxicated, and the video recording of the interview was "sanitized," at the People's discretion, so everything was out of context. Defendant's view of the evidence is that he was merely defending himself and Gentile against a vicious and aggressive attack. He says he "was scared for [his] life."
In making these arguments, defendant misunderstands the role of an appellate court. "[I]t is . . . beyond our domain to second-guess the jury's determination of credibility." (People v. McDaniels (1980) 107 Cal.App.3d 898, 903.) "[T]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury." (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) Here, the jury was instructed on both self-defense and imperfect self-defense of defendant or another, and these theories were ably argued to the jury. Substantial evidence supports the jury's determination and we are "without power to substitute [our] deductions for those of the trial court." (Ibid.)
Defendant's second group of arguments focuses on evidence which was not presented to the jury but which defendant believes should have been presented. Defendant first asserts that Harrison told Dr. Kong, the emergency room physician who initially treated Harrison for his wound, that he (Harrison) was a threat to himself and dangerous to other people. Defendant contends that Dr. Kong testified to this conversation out of the presence of the jury, but the jury should have heard this testimony. Defendant also asserts that Dr. Kong called "Mental Health Services" to report Harrison's statement, and that a female employee from "Mental Health Services" told Dr. Kong that Harrison had made the same or similar statements to her.
The Orange County agency whose services bear the closest relationship to defendant's description is the Orange County Health Care Agency's Department of Behavioral Health Services. --------
First, Dr. Kong did not testify to any of this. The only mention of this topic in the appellate record is an oral motion by the prosecution to exclude the evidence during Dr. Kong's testimony. The prosecutor stated, "It's my understanding from speaking to Dr. Kong that [the statement about self-harm or harm to others] was said to a social worker after Dr. Kong was off the case." The court did not make a definitive ruling, but noted, "[I]t would appear to be multiple hearsay at this point, but again I haven't heard the evidence and I'm just going off what counsel told me. The evidence may be relevant, and I'm not saying it would not be admissible with the proper foundation or in the absence of a foundational objection, but again I have to take this one step at a time." According to the prosecutor, this information was contained in Harrison's medical file from the trauma center, which was not itself in evidence.
Defendant faults his lawyer for not doing a sufficient investigation to determine the identity of the social worker from "Mental Health Services," and contends that "without a doubt" if this evidence had been presented he would have been acquitted of all charges. Altogether, defendant claims three "very important witnesses" were not presented: (1) the "Mental Health Services" employee; (2) an expert witness on intoxication; and (3) an expert to reconstruct the attack. Defendant also notes that Harrison never showed up at trial, thereby depriving defendant of his "confrontational rights."
We have no basis by which we could conclude that any of this material would have made a difference in the outcome. Defendant's own testimony was the only testimony describing what happened between himself and Harrison. The jury apparently believed defendant's testimony that he did not intend to kill Harrison because he was acquitted of attempted murder and the lesser included offense of attempted voluntary manslaughter. Defendant admitted the assault with a knife — the only issue was whether he was justified under the circumstances to resort to the use of deadly force. The jury heard defendant's account of the altercation and concluded defendant's use of deadly force was not justified. That conclusion was plainly supported by substantial evidence. We are powerless to second-guess the jury. And defendant was not denied his "confrontational rights." Harrison did not show up for trial, so there was no trial testimony to "confront." The only evidence from Harrison's mouth was his identification of defendant as his attacker while he was on a gurney, ready to be transported to the hospital. But identity was never an issue. Defendant freely and openly admitted the assault. Any error in not presenting the additional testimony suggested by defendant was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.