People v. Taylor

THE PEOPLE, Plaintiff and Respondent, v. RICHARD JAMES TAYLOR, Defendant and Appellant.

B254821

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

September 15, 2016

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. VA132519)

APPEAL from a judgment of the Superior Court of Los Angeles County, Yvonne T. Sanchez and John A. Torribio, Judges. Affirmed.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Joseph P. Lee and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Richard James Taylor appeals from the judgment after a jury convicted him of one count of battery with serious bodily injury (Pen. Code § 243, subd. (d))¹ with a related gang enhancement (§ 186.22, subd. (b)(1)(A)), one count of pimping (§ 266h, subd. (a)) with a related gang enhancement (§ 186.22, subd. (b)(1)(A)), and one count of active participation in a criminal street gang (§ 186.22, subd. (a)). He argues that the trial court violated his Sixth Amendment right to counsel of choice or that he received ineffective assistance of counsel when his lawyers failed to preserve his right to counsel of choice; the court erred in admitting evidence from police interviews of witnesses and a search of Taylor's cell phone; the court erred by failing to give certain jury instructions; there was insufficient evidence to support the convictions for battery and active participation in a criminal street gang; the court committed multiple sentencing errors; and cumulative error requires reversal of his convictions. We conclude that the court's only errors, admitting certain hearsay evidence from two police interviews and four text-message exchanges from Taylor's cell phone, were harmless. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Marsadais Daise and the Events of February 7, 2013

Marsadais Daise, a prostitute, had been dating Taylor, her pimp, intermittently for approximately three years. On February 7, 2013 Taylor was at a motel with Daise and two other women—Cynthia Bowen and Bowen's friend. After finding a condom in the toilet of the motel room, Daise confronted Taylor. Daise and Taylor argued. When law enforcement arrived at the motel, Daise had a bloody lip, a big lump over her eye, and a chipped tooth. She told a deputy sheriff that Taylor hit her "several times in the face with his fists," causing her injuries. She also told the deputy that Taylor was her pimp and thatshe gave him the money she made working as a prostitute. The deputy sheriff placed Taylor under arrest.

B. Jessica Sisneros and the Events of March 27-28, 2013

At 11:00 p.m. on March 27, 2013 Jessica Sisneros was standing outside a fast-food restaurant waiting for her friend to pick her up when Taylor, driving a white van, stopped and asked if she needed a ride. Sisneros said "no," but Taylor told her to "get in the car or else I'll get you in the car." Sisneros, afraid that Taylor would hurt her, complied. Two women were already in the van. For the next seven and a half hours Taylor tried to convince Sisneros to work for him as a prostitute.

Taylor drove to a truck stop and told one of the two woman already in the van "to go one direction" and the other woman "to go to the other direction." He told them to "prostitute theirself," and said he would call them when he was ready to pick them up. Sisneros testified that the women "got out and did what he asked them to do," and that she saw them walk in different directions.

Once Sisneros and Taylor were alone in the van, Taylor said "You're gonna work for me." Sisneros said "No," and Taylor tried to slap her, but she moved away from him and closer to the passenger door. Taylor continued: "I'm a pimp. You're gonna work for me." Sisneros said, "'No, I'm not." Undeterred, Taylor said again that Sisneros would work for him, explaining that he had always wanted a "Mexican girl" to work for him. Taylor stopped the van and said, "If you want to get out, then get out." Sisneros got out of the van, but Taylor, still driving the van, tried to run her over. Sisneros jumped out of the way to avoid being hit. At that point, with "nowhere to run," Sisneros got back into the van.

At approximately 3:00 or 4:00 a.m., Taylor called the women he had dropped off earlier and arranged to meet them at a doughnut shop in Compton. The same two women, along with a third woman, got into the van. Taylor drove to a house where he got out of the car and exchanged something with Johnny "Poodah" Randall. The police arrived soon after, between 6:30 and 7:00 a.m. The police officers said that the van wasstolen, and arrested both men (Taylor and Randall) and all four women (Sisneros, Shambray Harper, Shaquinta "Shauna" Rembert, and Cynthia Bowen's sister, Lexy Bowen).

Detective Cynthia Sanchez interviewed Taylor. Taylor admitted that he was a member of the Elm Street gang and went by "T-Money" and "Active." Deputy Sheriff Tifani Stonich interviewed the women who were arrested. Harper told Deputy Stonich that Harper had "been a prostitute for some time," was "currently in a relationship with Active," had "been prostituting for him," and knew two of the other women who had been in the van. Harper, Rembert, Bowen, and Sisneros also made written statements, although only Sisneros's written statement was admitted at trial. The court excluded Harper's statement as more prejudicial than probative. Although Harper's statement is not included in the record, the trial judge described the statement as including information about "other girls giving money," presumably to Taylor or Randall, and "a lot of [other] stuff" "beyond what is necessary" to establish that Harper worked as a prostitute for Taylor. Counsel for Taylor questioned Deputy Stonich about Rembert and Bowen's written statements, which, although the prosecution never introduced them into evidence, apparently included information about Rembert and Bowen working as prostitutes for Randall and giving money to Randall.

The police confiscated all of the personal property that Taylor, Randall, Sisneros, Harper, Rembert, and Lexy Bowen were carrying, including their cell phones and cash. Taylor had each woman's phone number in his phone except Sisneros's. The police took screenshots of four text-message exchanges from Taylor's phone. In the first text-message exchange, Harper texted Taylor that she told someone else that she "had a pimp," and that she was "all for yu [Taylor]," "tired of hiding it," and "too loyal to hide yu." In the second text-message exchange, Rembert texted Taylor, "I promise to never do that again DADDY PLEASE AKTIVE MODEL BYTCH$$$$." The third and fourth text-message exchanges were between Lexy Bowen and Taylor. Lexy Bowen wrote, "[I] aint caught no date but im goin to get one dont trip i already gave you 120 i need 7 more . . . [h]undred to go . . . [c]ause i know how you are and i know what the results is."

C. Daise's Detention and the Preliminary Hearing

Daise was in custody for Taylor's preliminary hearing and trial. Although it is not entirely clear why she was in custody, the record suggests that the People had subpoenaed her in connection with Taylor's case, perhaps an earlier filing (there is a reference that this case was a re-filing of a previous case), and she had not appeared.² There is no evidence or suggestion that Daise was in custody pending the trial of any charges against her. In any event, Daise was in custody for three months, until she testified at Taylor's trial.

At Taylor's preliminary hearing, Daise denied much of what she had told the deputy on February 7, 2013. She said she had been dating Taylor "off and on for about three years," saw Taylor on February 7, 2013, was a prostitute at that time, but did not have a pimp. She testified that she did not remember talking to law enforcement that day. When asked how she got the lump over her eye, she answered, "I had got into a fight earlier that day with a female and I guess she hit me." Daise stated that she argued with Taylor about the condom she found in the toilet, thought it meant that he was cheating on her, and was very angry about it—maybe angry enough to lie to law enforcement about Taylor.

D. The Attempt by Taylor's Family To Retain a Private Attorney To Replace Taylor's Court-Appointed Attorney

The trial was scheduled to begin on January 30, 2014, which was day 57 of 60. Taylor was represented by court-appointed counsel, and Daise was still in custody. The day before trial was scheduled to begin, Brenda Vargas, an attorney hired by Taylor's family, filed a motion to continue the trial so that she could substitute in as counsel and have time to prepare for trial. In her declaration, Vargas wrote, "Our office is requesting a short continuance to allow the defendant time to examine documentary evidence, to wit,police reports, pictures, statements and any other recordings." Vargas requested a continuance to "the middle of October, 2013," probably meaning October 2014.

On January 30, 2014, while Taylor was not in the courtroom but still represented by court-appointed counsel, Vargas came to court for the hearing on her motion. After an off-the-record discussion at sidebar about the motion, the court stated on the record: "Earlier this morning counsel Brenda Vargas had filed a request to become counsel of record and continue trial but since then counsel has withdrawn the motion and left the courthouse. So we're back...