Filed 6/16/16 P. v. Taylor CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    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

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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



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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.




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