Opinion
D072789
09-25-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES TAYLOR, Defendant and Appellant.
Marianne Harguindeguy, 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, Charles C. Ragland and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD271180) APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Marianne Harguindeguy, 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, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
In August 2017, a jury convicted defendant Michael James Taylor of: (1) willful cruelty of a dependent adult (count 1, Pen. Code, § 368, subd. (b)(1)) and (2) assault with means likely to cause great bodily injury (count 2, § 245, subd. (a)(4)). Taylor admitted that he sustained a previous prison prior conviction (§ 667.5, subd. (b)), and a "strike" prior conviction (§§ 667, subds. (b)-(i) & 1170.12). The court sentenced defendant to nine years in state prison.
All further statutory references are to the Penal Code. --------
On appeal, Taylor argues that the evidence at trial was insufficient to support the "dependent adult" element of count 1, and that the trial court committed prejudicial error when it failed to instruct the jury with a clear, constitutional definition of "dependent adult." As we explain, we disagree and thus affirm his judgment of conviction.
FACTUAL AND PROCEDUAL BACKGROUND
A. Sarah P.
At the time of trial, Sarah P. was 49 years old and unemployed. Sarah worked for the County of San Diego at the Polinsky Institute as a child care specialist for 17 years before she was terminated because of her epilepsy, which caused her to be continually late for work. Sarah also suffered from radial aplasia, meaning that she was born without the radius bone in each arm (forearm). Because of this birth defect, Sarah's wrists were clubbed inward, resulting in her fingers being "closed in"; although she had five to 10 surgeries to "straighten" her wrists, she was still unable to close fully all of her fingers.
Sarah was diagnosed with epilepsy in the eighth grade and had frequent seizures. Sarah took medication that partially rectified the problem, but she still suffered from twitching, muscle spasms on her left side, and a tendency to fall during a seizure. Sarah also had several learning disabilities which limited her cognitive ability. She often stuttered when speaking, struggled in understanding certain conversations, and had trouble with memory retention.
Sarah lived on her own and was able to drive her own car. However, she had a disabled sticker on her license plate and considered herself to be "disabled." She also considered getting an in-home caretaker to take some of the burden off her and help her with household chores.
Before the incident, Sarah had smoked methamphetamine for about five years in order to be more "productive" around the house. She first met defendant Taylor in Linda Vista near a fast food restaurant in order to purchase methamphetamine. She knew the area because she had gone there previously to purchase methamphetamine. On their first meeting, Sarah drove up to Taylor, and asked if he had the drug. When he said yes, Sarah then invited Taylor into her car, and they both went to another park to smoke.
After their initial meeting, Sarah invited Taylor to her house several times over the following week, where they smoked methamphetamine together. Taylor would often "hang out" at Sarah's house, and once took a nap in Sarah's bed, but no romantic or sexual conduct occurred. Sarah testified that, while she did invite Taylor over, she never had fun in his company and believed that she had to keep an "eye on him" because he was a stranger in her house.
On the day of the attack, Taylor came to her home but unlike the other times, he showed up unexpectedly and uninvited. Once inside, they smoked methamphetamine. Taylor appeared to be acting "different" and began to scare Sarah, as he was sweating and "very red in the face." Sarah became very nervous, and asked Taylor to either come down into the garage with her or leave. Taylor refused, and instead "stayed in the living room."
Taylor then accused Sarah of being mean to him. Sarah went upstairs to brush her hair. Unbeknownst to her, Taylor followed behind and struck her, knocking her onto the closet floor. As Sarah hit the floor, she began having a seizure. Taylor grabbed her legs and pushed her entire body into the closet in order to shut the door. Taylor then turned off the lights and locked himself into the closet with Sarah. He next put his hands around her neck and began to pull backwards, making it hard for Sarah to breathe. Sarah yelled at Taylor that she was having a seizure. He replied, "Shut the 'f' up or I'll do it harder." As Taylor was pulling on Sarah's neck, she focused on her breathing to push through the seizure, as she was having tunnel vision.
Taylor then abruptly let go of Sarah, got up, and turned on the lights. Taylor apologized and offered to get Sarah a glass of water. Taylor then tried to help Sarah, but she asked him to leave because she was scared. Sarah was still suffering from a seizure, but she and Taylor walked downstairs to sit in the living room. Sarah realized that Taylor had her cellphone in his hand. Taylor agreed to return the phone when he left because he didn't want her to call the police. Sarah was calm, but afraid, and agreed to take a hit of methamphetamine from Taylor's pipe only after he pressured her to do so and told her that it would make her "feel better."
Sarah told Taylor that she needed to leave and that if she ever saw him in the cul-de-sac, she would call the police. Sarah then drove to the police station, but it was closed. The following evening, she called police. An officer came to her house at around 3:00 a.m. Because of the incident, Sarah began to feel pain in her neck, forehead, cheeks, as well as consistent "dull" headaches. These conditions were all unrelated to her prior medical problems. Sarah also had several abrasions/red marks around her face, and her eyes were "completely" bloodshot.
B. Michael Holman
Michael Holman, M.D., an emergency physician, testified on the subject matter of strangulation. Holman described strangulation as the "closure of blood vessels for air passages as a result of external pressure on the anterior neck." More specifically, Holman defined strangulation as "asphyxia," which is the lack of oxygen to the brain. Asphyxia often leads to unconsciousness or death. Holman testified that symptoms of strangulation include: redness in the facial area and eyes, tunnel vision, difficulty swallowing, and loss of memory.
After reviewing the police reports, preliminary hearing reports, and photographs, Holman found that Sarah did indeed exhibit signs of a strangulation injury. He testified that Sarah's eyes, neck area, and left cheek were red because of heightened pressure in the area. He believed that Sarah's symptoms during and after the event were associated with a loss of consciousness. Holman concluded that Sarah had likely suffered a strangulation injury.
C. Evelyn Aring
Evelyn "Evie" Aring was a friend of Sarah's. A few days after the attack, Sarah went over to Evie's house. Upon arrival, Evie noticed several "abrasions" on Sarah's neck, arms, and face. She became very worried and, when Sarah explained the situation, urged Sarah to report the incident to the police, which Sarah had already done.
D. Joshua Jauregui
San Diego Police Officer Joshua Jauregui was dispatched to Sarah's house on August 25, 2016. When he arrived at the door, Sarah appeared frightened and had several abrasions on her face, cheeks, and neck area. Jauregui took photos of the abrasions. Sarah then demonstrated to Jauregui what had happened to her during the attack. Sarah identified Taylor as her attacker. Jauregui contacted Taylor on December 26, 2017, and obtained a DNA sample from him.
E. Nori Pappert
San Diego Police Officer Nori Pappert was appointed as the detective for this case and went to Sarah's house on August 31 to record her statement. Pappert asked Sarah if Taylor had left anything at the house, and Sarah gave Pappert a sock that did not belong to her. Pappert collected the sock. DNA testing showed that Sarah was a 79 percent contributor, and Taylor a 12 percent contributor.
DISCUSSION
I
Taylor contends that the "evidence presented at trial was insufficient to support the 'dependent adult' element of count one," for purposes of section 368, subdivisions (a) and (h).
A. Guiding Principles
The principles governing our assessment of defendant's challenge to the sufficiency of the evidence are well settled. "We ' " 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " ' [Citation.]" (People v. Brooks (2017) 3 Cal.5th 1, 57.) "Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence." (In re Michael D. (2002) 100 Cal.App.4th 115, 126.)
Subdivision (a) of section 368 provides as follows:
"(a) The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf."
Subdivision (h) of this same statute defines the term "dependent adult." It provides in relevant part: "As used in this section, 'dependent adult' means any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age."
The case of People v. Matye (2008) 158 Cal.App.4th 921 (Matye) informs our decision on this issue. In Mayte, evidence that the 60-year-old victim had suffered a massive stroke, was partially paralyzed on her right side, walked with difficulty, usually used a cane or walker, had lapses in memory and comprehension, did not drive, and relied on others for assistance with banking and other household tasks, was sufficient to establish that she was "dependent adult." (Id., at pp. 923, 925-926.) Interpreting subdivision (h) of section 368, the Matye court concluded that the term "restrict" is "not synonymous with 'preclude.' A restriction is only a limitation or restraint. [Citation.] Therefore, it is not necessary to prove that the person is incapable of carrying out normal activities or of protecting the person's rights; it is sufficient if the person's ability to do so is limited in some significant way." (Id. at p. 925.) The Matye court then viewed the evidence in the light most favorable to the judgment and found it amply supported the jury's finding that the victim in that case was a dependent adult within the meaning of section 368. (Ibid.)
B. Analysis
The record shows the jury was properly instructed that a "dependent adult" was a person who had physical or mental limitations restricting, but not precluding, his or her ability to carry out normal activities. We agree with the reasoning of the court in Matye that the word "restrict" in section 368, subdivision (h) is "not synonymous with 'preclude.' A restriction is only a limitation or restraint." (See Matye, supra, 158 Cal.App.4th at pp. 925-926.)
Here, the record contains more than sufficient evidence to support the jury's finding that Sarah was a "dependent adult" within the meaning of section 368. Specifically, the record shows that she was diagnosed with epilepsy in the eighth grade, and had frequent seizures; that although medication helped, she still suffered from twitching, muscle spasms on her left side, and a tendency to fall during a seizure; that she also had several learning disabilities which limited her cognitive ability, as she often stuttered when speaking, struggled in understanding certain conversations, and had trouble with memory retention; that she also suffered from radial aplasia; that as a result of this condition, her wrists were clubbed inward, resulting in her fingers being "closed in"; that despite five to 10 surgeries to "straighten" her wrists, she was still unable to close fully all her fingers; that she considered herself disabled and also had a handicap placard for her car; that she contemplated hiring a caregiver to help with the household chores; and that her mental and physical disabilities therefore restricted — but did not preclude — her ability to carry out normal activities. (See Matye, supra, 158 Cal.App.4th at pp. 925-926.) Thus, although Sarah was able to live on her own, drive a car, and care for herself, we conclude the evidence is more than sufficient to show her mental and physical disabilities were sufficiently debilitating for her to qualify as a "dependent adult" within the meaning of section 368, subdivision (h).
Taylor nonetheless argues that, because Sarah lived on her own, she cannot as a matter of law be a "dependent adult" within the meaning of the statute. We disagree. Section 368 makes no reference as to whether someone must receive living assistance to be considered a "dependent adult." The statute instead requires that it be broadly interpreted and that a "dependent adult" is someone who has physical or mental limitations that "restrict his or her ability to carry out normal activities or to protect his or her rights." As noted above, Sarah suffers from both mental and physical disabilities that "restrict" her ability to carry out normal activities. We thus reject Taylor's argument.
II
A. Additional Background
Taylor next contends that the "trial court committed prejudicial error when it failed to unambiguously instruct the jury with a clear, constitutional definition of 'dependent adult.' " Specifically, he contends that CALCRIM No. 830, which the court used to instruct the jury in this case, is ambiguous as it relies on one or more "undefined terms," including the words, "normal activities" and "protect their rights." We again disagree.
The court instructed the jury with CALCRIM No. 830, modified as follows:
"The defendant is charged in Count One with dependent adult abuse likely to produce great bodily harm or death in violation of Penal Code section 368(b)(1). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully inflicted unjustifiable physical pain on SARAH . . . ; [¶] 2. The defendant inflicted suffering on SARAH . . . under circumstances or conditions likely to produce great bodily harm or death; [¶] 3. SARAH . . . is a dependent adult; [¶] AND [¶] 4. When the defendant acted, he knew or reasonably should have known that SARAH was a dependent adult.
"Someone commits an act willfully when he or she does it willingly or on purpose. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] A dependent adult is someone who is between 18 and 64 years old and has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights. This definition includes an adult who has physical or developmental disabilities or whose physical or mental abilities have decreased because of age.
"It is not necessary to prove the person is incapable of carrying out normal activities, only that their ability to carry out normal activities or protect their rights is limited in some significant way.
"Unjustifiable physical pain is pain or suffering that is not reasonably necessary or is excessive under the circumstances. [¶] A dependent adult does not need to actually suffer great bodily harm. But if a dependent adult does suffer great bodily harm, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed the offense."
B. Forfeiture
As noted, Taylor on appeal argues that CALCRIM No. 830 is "ambiguous" and thus, that the jury was improperly instructed on the definition of "dependent adult." We note, however, that Taylor did not raise this argument below. As such, we conclude this claim of error is forfeited on appeal. (See People v. Hart (1999) 20 Cal.4th 546, 622 [noting a defendant may not contend on appeal that jury instructions are impermissibly ambiguous without first requesting a clarifying instruction at trial, and further noting the failure to make such a request forfeits the claim on appeal].) However, to forestall a claim of ineffective assistance of counsel, we turn to the merits of the claim.
C. Merits
Taylor argues that CALCRIM No. 830 amplified the ambiguity in relation to the definition of "dependent adult." However, the words "normal activities" and "protect his or her rights" are two commonly understood phrases, which do not require further definition. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1018, disapproved on another ground as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Malone (1988) 47 Cal.3d 1, 55.)
Even if Taylor had not forfeited the claim of error, and even if the phrases "normal activities" and "protect his or her rights" were ambiguous and required further clarification, our decision on this issue would not change because we further conclude any such error was harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson). (See People v. Beltran (2013) 56 Cal.4th 935, 955 [noting that " ' "misdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated" in Watson' " (italics added)].)
Here, there is substantial evidence in the record to show Sarah was a "dependent adult" within the meaning of section 368, as described above in the previous section.
What's more, there is overwhelming evidence in the record to support the jury's findings — which findings, Taylor in any event does not challenge on appeal — that Taylor willfully inflicted unjustifiable physical pain on Sarah, and that he inflicted suffering on Sarah under circumstances or conditions likely to produce great bodily harm or death (i.e., strangulation). We thus conclude under the Watson standard that Taylor cannot show it was reasonably probable he would have obtained a more favorable result absent the (alleged) error in instructing the jury with CALCRIM No. 830.
DISPOSITION
The judgement is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. AARON, J.