Opinion
G053678
01-24-2018
THE PEOPLE, Plaintiff and Respondent, v. TELONIOUS LAMAR TAYLOR, Defendant and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CF1451) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed as modified. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Telonious Lamar Taylor was convicted of eight counts (counts 2 through 8, and 12) involving human trafficking, pimping, pandering, false imprisonment and criminal threats directed at Jane Doe and L.C. He was sentenced to 15 years in prison, principally based on count 5 (human trafficking of L.C.). However, this appeal is only concerned with the human trafficking count 5, and counts 8 (criminal threat made to L.C.) and 12 (assault against L.C. likely to produce great bodily injury). Taylor makes no challenge to the sufficiency of the evidence, but asks us to review, in-camera, confidential sealed psychiatric records concerning the prosecution's main witness, L.C., to determine whether the trial court's refusal to disclose those records to the defense at trial may have violated any of Taylor's constitutional rights. He also asserts that counts 8 and 12 should not run concurrently with his 15-year sentence on count 5, but should be stayed under section 654. Finally, there is the matter of two days difference between Taylor's calculation of his presentence custody credits: He says 411 days, the Attorney General says 409.
All further statutory references are to the Penal Code. Taylor was convicted of:
Count 2, attempted pimping of Jane Doe (§§ 664, subd. (a), 266h, subd. (b)).
Count 3, pandering of Jane Doe to become a prostitute (§ 266i, subd. (a)(2)).
Count 4, false imprisonment of Jane Doe (§ 236).
Count 5, human trafficking of L.C. (§ 236.1, subd. (b)).
Count 6, pimping of L.C. (§ 266h, subd. (a)(2)).
Count 7, pandering of L.C. to become a prostitute (§ 266i, subd, (a)(2)).
Count 8, criminal threats to L.C. (§ 422, subd. (a)).
Count 12, assault against L.C. with force likely to produce great bodily injury (§ 245, subd. (a)(4)).
Taylor was sentenced to 14 years (middle term) on count 5, plus an extra year enhancement for having a prison prior. His sentences on all other counts were either stayed under section 654 (specifically counts 2 (2 years), 6 (4 years) and 7 (4 years)), or ordered to run concurrently with the 14 years for count 5 (specifically counts 3 (4 years), 4 (6 months); 8 (2 years), and 12 (3 years)).
Having reviewed the confidential psychiatric records we can confidently say they contain nothing that implicates L.C.'s ability to perceive, recall or describe the events that happened to her. We also explain that counts 5, 8 and 12 were sufficiently discrete in time and purpose so as not to be within the ambit of section 654. Finally, having done the counting ourselves, we conclude the correct figure for his custody time is 410 days and we hereby modify his sentence so that he will now receive credit for 410 days of actual presentence custody plus another 410 for good conduct, which equals 820.
II. BACKGROUND
Counts 5, 8, and 12 all arose out of the horrible experience that L.C., a Colorado free-lance prostitute, suffered at the hands of Taylor after he lured her to California on the promise she could make more money here. L.C. testified about Taylor's treatment of her during the period April 10 through April 16 in 2015. Those six days were marked by three distinct phases:
(1) April 10, 2015, the betrayal. Prior to coming out to California in March 2015, L.C. had worked as a prostitute in Colorado. She did not have a pimp. Rather, she advertised through the internet, paid a driver-security guard $40 for each assignation, and kept the balance of the client's fee for herself. During this period, Taylor, based in California, contacted L.C. with the promise of making more money in California. He wanted, he said, to "get you situated and stable in your own place." And he disavowed being a pimp. "Hey, pimps just have a bad name. I don't want you to associate me with pimps."
At first, L.C. resisted Taylor's offer, instead electing in March 2015, to come out to California by train to live with her aunt in Modesto and obtain legitimate employment. But she couldn't find a job and so contacted Taylor.
L.C. took a bus to San Bernardino, arriving the morning of April 10, 2015. Taylor picked her up in his Cadillac and took her to a cheap motel in San Bernardino. They checked in. Later that evening they went for a drive. Taylor pulled into a business parking lot. He told L.C. she would be walking the street. L.C. objected. She did not walk the streets; she obtained clients via the internet. Taylor reached under the driver's seat and pulled out a gun. He pressed it to her forehead and said, "You are going to do what I tell you to do." Though L.C. had no desire to "to work on the track," she complied out of fear for her life. As she walked the "track," Taylor would text her, or call her on her cell phone. She gave him all her earnings for that evening.
(2) April 11-14, belongings taken hostage in the Inland Empire. The timeline over the next few days after the gun incident is not clear from the record, but several events stick out. When L.C. arrived from Modesto, she brought with her one duffle bag and one suitcase containing her belongings, including important identification documents, such as her children's birth certificates and social security cards. During those next few days Taylor took her to a place in Pomona frequented by streetwalkers, leaving L.C.'s belongings back at the San Bernardino motel. They were stopped on the way back from Pomona by a police officer, but L.C. was afraid to tell him of her growing predicament because her belongings were under Taylor's control back at the motel.
About April 12, Taylor drove L.C. to a different motel where they checked in under her name. Taylor took photos of L.C. to post on the internet, some potential clients phoned, but no actual "dates" resulted. On April 14, when Taylor and L.C. went to check out, they met an associate of Taylor's called "Nutcase" and a woman who apparently worked for Nutcase as a prostitute. After checking out, Taylor took L.C.'s duffle bag and suitcase to a storage locker where he locked them in, giving L.C. no chance of retrieving her possessions without his permission.
(3) April 14-16, deadly force. From the second motel, the four drove to a motel in Stanton. L.C. had one date there, and turned over all the money to Taylor. But now she wanted to escape. On April 16 (or about that time), another client paid her $80 for a date. Hoping to put together some money to get back to Colorado, L.C. gave Taylor only $50 of it. Taylor was not fooled. He demanded all the money and there was a contretemps over the remaining $30. During the struggle Taylor began choking L.C. She had a hard time breathing. But Taylor left the room for a few moments, and L.C. called 911. She said he had crossed "the line." The call led to Taylor's arrest a week later and this prosecution. About two weeks after that L.C. got her belongings back.
III. DISCUSSION
A. Confidential Records
One of the numerous texts between Taylor and L.C. concerned suicide. About 3 a.m. on April 14, L.C. texted Taylor: "So right now, my mind's set on ending my life." The defense, of course, knew about the text, and, as trial loomed in February 2016, a subpoena was served requiring her to bring her mental health records. The effort to obtain the records ultimately resulted in a continuance of the trial to April. The prosecution made a motion to quash the subpoena, having come into possession of medical records sent from a hospital in Colorado. The trial court reviewed the records in camera prior to the ruling on the motion to quash. The trial court denied the motion. Having reviewed the records, it concluded "there's really nothing to disclose pursuant to the SDT [subpoena]" and determined it would exclude the records on the basis of their irrelevance under section 352 of the Evidence Code.
The records were in fact sent to one of the officer witnesses who testified.
The test for disclosure of a witness' medical records is set out in People v. Gurule (2002) 28 Cal.4th 557, 592 (Gurule): Here is the relevant passage in greater detail: "Of course, the mental illness or emotional instability of a witness can be relevant on the issue of credibility, and a witness may be cross-examined on that subject, if such illness affects the witness's ability to perceive, recall or describe the events in question. (People v. Herring (1993) 20 Cal.App.4th 1066, 1072; People v. Anderson (2001) 25 Cal.4th 543, 608 (conc. opn. of Kennard, J.).)" (Gurule, supra, 28 Cal.4th at pp. 591-592.)
We have reviewed the records examined by the trial court. We can say this much: Our evaluation revealed no abnormalities about L.C.'s speech and thought processes and showed her cognitive function was within normal range. We have perused the records looking for any indication of impairment to perceive, recall or describe events, and have found quite the opposite. We need only add that having reviewed L.C.'s trial testimony, she was a perfectly lucid witness, and if she had any thoughts in the past about suicide, they would be excludable as (far) more prejudicial than probative. B. Section 654
Taylor was convicted of human trafficking (count 5), making a criminal threat (count 8), and assault likely to produce great bodily injury (count 12). While the trial judge ordered counts 8 and 12 to run concurrently, Taylor asserts those counts should have been stayed, under section 654, instead. His theory on appeal is that insofar as L.C. was concerned, all these crimes were a manifestation of "a course of conduct comprising an indivisible transaction." (Quoting People v. Bauer (1969) 1 Cal.3d 368, 377.)
Section 654 prohibits multiple punishments under different provisions of law for a single act. In relevant part it provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
The key issue in this regard is whether a defendant has "multiple criminal objectives" and intents which are not "merely incidental to each other," and the standard of review is whether substantial evidence supports the trial court's decision to punish each objective and intent separately. (E.g., People v. Blake (1998) 68 Cal.App.4th 509, 512).
To be sure, there certainly was some overlap in the effects of Taylor's actions toward L.C. - holding a gun to a person's head or choking them to near-death is likely to have the effect of making him or her generally more compliant. But just because Taylor might have had one big objective - to use L.C. to make money - doesn't mean he necessarily had the same objective at various stages of his relationship with her for what turned out to be three discrete acts. (See People v. Perez (1979) 23 Cal.3d 545, 552 ["desire for wealth" doesn't mean a "series of separate thefts" amount to one crime].) Here, we find substantial evidence to support distinctly different objectives and intents to support each count.
Count 5 (human trafficking) is supported by Taylor's taking control of her belongings, including documents very important to her children. We note, as to count 5, that unlike counts 8 (criminal threat) or 12 (force likely to produce great bodily injury), there was no precipitant in regard to the human trafficking count. Taylor physically - and judging from the testimony, fairly casually - took L.C.'s belongings to his own storage facility and locked them up there without any possibility she would have independent access to them. That is, he not only took her belongings hostage - but, as the Attorney General perceptively notes - effectively also took her children hostage because of the important identification documents related to them - all to keep her working under his control as a prostitute.
The part of California's human trafficking statute relevant to the case at hand reads as follows:
(b) A person who deprives or violates the personal liberty of another with the intent to effect or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking and shall be punished by imprisonment in the state prison for 8, 14, or 20 years and a fine of not more than five hundred thousand dollars ($500,000). [¶] . . . [¶] (h) For purposes of this chapter, the following definitions apply: [¶] . . . [¶] (3) 'Deprivation or violation of the personal liberty of another' includes substantial and sustained restriction of another's' liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out." (§ 236.1, subds. (b) & (h), italics added.)
Count 8 was a distinctly different act - holding a gun to L.C.'s head to make her do what he told her to do. That act was focused on the kind of prostitution Taylor had in mind for L.C. at that specific moment. His objective (at least as of April 10) was to have her walk the street that night rather than obtain clients on the internet. To be sure, pulling the gun had the collateral effect of terrorizing L.C. into general compliance with Taylor's plan, but it was borne, at the time, of L.C.'s own objections to streetwalking and Taylor's desire to impose a pimp-prostitute relationship on L.C. Streetwalking was not what L.C. had journeyed to San Bernardino to do, and is often seen as the bottom rung of prostitution. (E.g., Alex Miller, Sugar Dating: A New Take on an Old Issue (2012) 20 Buff. J. Gender, L. & Soc. Pol'y 33, 39 ["Streetwalkers, those who openly solicit sex on the street, 'represent the lowest, most marginalized class of prostitutes' and are usually controlled by pimps."].)
Count 12 was supported by another discrete act: choking L.C. as she struggled to keep $30 of her $80 fee. Like pulling a gun, it had the general point of an attempt to subordinate L.C. to Taylor's control. But it had no necessary relationship to that control and was a different act from either the gun or his commandeering of her belongings and documents. It was, literally, a struggle over proceeds. Taylor choked L.C. to get her to give him $30. That is a different intent from counts 5 and 8.
Three discrete objectives were manifested in three distinct acts at three distinct times. There was ample support for the trial court's decision not to stay counts 8 and 12 as part of count 5. C. Pre-Sentence Custody Credits
Taylor was arrested on April 21, 2015, and sentenced on June 3, 2016. That much the parties agree on. The Attorney General says the span of time was 409 actual custody days. Taylor's appellate attorney says the figure is really 411 actual custody days to be rounded down to 410. (See People v. Chilelli (2014) 225 Cal.App.4th 581, 588 ["conduct credits are given in two day increments and no rounding up is permitted"].)). Both parties are wrong.
We think we know what happened. At least one calendar computer calculator on the internet requires you to decide whether to count the end day. ("Include end date in calculation (1 day is added).") If you use that calculator, but forget to check the "end date" box, you get 409, the Attorney General's figure. But you have to count not only the day of arrest (see People v. Morgain (2009) 177 Cal.App.4th 454, 454, 469; § 2900.5), but the day of sentencing as well, even if it is only a partial day (see People v. Browning (1991) 233 Cal.App.3d 1410, 1412 ["The People concede pursuant to section 2900.5 that defendant should have been given credit for 147 days of presentence custody because the day of sentencing should have been counted even though it was necessarily a partial day."]). Plugging in April 21, 2015 and June 3, 2016 into that calculator, and checking the "end date" box gives you 410.
On the other hand, Taylor's appellate counsel appears to have checked the end date box, and gotten 410, but not understood that the calculator already adjusts for leap years, and so proffers 411 as his figure. We thus do not have some ingenious paradox involving February 29 straight out of Gilbert and Sullivan, just a counting error. And not only does the internet calculator give you 410 days if you check the "end date" box, but you also get 410 if you tediously add the 10 days of custody for April 2015 that began on the 21st of the month, the 3 days of custody (including the day of sentencing on the third) that ended in June 2016, plus the various total days of the months May 2015 through May 2016, being careful to use 29 as the February 2016 figure. The bottom line is that Taylor should receive 820 days presentence credit: 410 actual plus 410 conduct.
IV. DISPOSITION
We hereby modify the judgment to provide that Taylor shall receive 820 days of presentence credit. In all other respects we affirm it.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. THOMPSON, J.