Filed 10/24/13 P. v. Taylor CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

### IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Appellant.

v. DARRYL JEWEL TAYLOR, Defendant and Appellant. F064458 (Super. Ct. No. VCF256404)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Tulare County. Gary Paden, Judge. Kendall Simsarian, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Kathleen A. McKenna, Tiffany J. Gates, and Charity S. Whitn ey, Deputy Atto rneys General, for Plaintiff and Appellant.
-ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Franson, J.2 INTRODUCTION On October 19, 2011, appellant, Darry l Jewel Taylor, was charged in an information with three felonies: making a cr iminal threat (Pen. Code, § 422, count 1), 1 assault with a deadly w eapon (§ 245, subd. (a)(1), count 2), and possession of methamphetamine (Health & Saf. Code, § 1137 7, subd. (a), count 3). He was also charged with two misdemeanors: possession of a smoking device (Health & Saf. Code, § 11364, subd. (a), count 4) and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a ), count 5). The information further alleged use of a deadly or dangerous weapon in the commissi on of count 1 (§ 12022, subd. (b)(1)), a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)- (i) & 1170.12, subds. (a)-(d)), and a prior serious felony conviction (§ 667, subd. (a)(1)). On December 15, 2011, a ju ry found Taylor guilty of count 3 and acquitted him of count 2. The jury found Tayl or guilty of the lesser include d offense in count 1 of an attempt to make a criminal th reat. The jury also convicted Taylor of the misdemeanor drug offenses and found Taylor used a dangerous or deadly weapon. In a bifurcated proceeding, Taylor waived his rights and ad mitted the prior serious felony conviction and the three strikes allegation. On February 23, 2012, the trial court se ntenced Taylor on the attempted criminal threat conviction to one year, doubled to two years pursuant to the th ree strikes law, plus consecutive terms of one year for the weapon enhancement and five years for the prior serious felony conviction. Tayl or’s total prison term is eight years. The court imposed a concurrent sentence of four years on count 3. The court awarded Taylor 291 days of presentence custody credit, consisting of act ual custody credits of 195 days and conduct credits of 96 days.

1 Unless otherwise noted, statutory references are to the Penal Code.3 Taylor contends there was not substantia l evidence to support his conviction for attempting to make a criminal threat. The Pe ople contend in a cross-appeal that the trial court improperly imposed an unauthorized sentence by making appellant’s sentence on the drug offense concurrent to the attempte d criminal threat conviction. The People argue that a consecutive sentence for possessi on of methamphetamine is mandatory under the three strikes law. As we explai n below, we reject both contentions.
FACTS Teri Davis dated Taylor for a year a nd a half until their re lationship ended in January 2011. 2 Beginning in August, Davis briefly da ted Steven Clark. Davis received a phone call from Taylor on August 8. Taylor was upset with Davis because he learned Davis was dating someone else. Taylor told Davis he would kill the person Davis was dating if he went back to Davis’s house. Although Taylor did not know Clark’s identity during the first phone call, he told Davis th at when he found out his identity, he would
murder him.
Davis received another call from Taylor the next day at 3: 30 a.m. Davis could tell from Taylor’s tone that he was upset. This time, Taylor told Davis he knew she was dating Clark and if Clark ever returned to Davis’s house, Tayl or would kill them both. On August 13th, someone called 911 requ esting police assistance because he “just almost got stabbed.” 3 The caller told the dispatcher that a man named Darryl Taylor swung a knife at his face and then rode away on a bicycle. The caller identified himself as Clark. Porterville police officers were im mediately dispatched as Clark was talking to the 911 operator.

2 All dates will hereafter refer to the year 2011.
3 The recording of the 911 conversation wa s admitted as People’s exhibit “1-A” and played to the jury during trial.4 Officer Tyson Tashiro was dispatched at 2:15 a.m. on August 13th to a residence
in Porterville on North Fourth Street where he contacted Clark. Clark told Tashiro that Taylor came out of the bushes, attacked him with a sharp, shiny knife he held in his left hand, and told Clark, “I’m goi ng to fuckin[g ] kill you.” Clark told Tashiro that Taylor approached him rapidly and swung at Clark with his empty right hand. Clark explained to Tashiro that he took several steps back and defensively swung at Taylor who stumbled back slightly. Tayl or then swung at Clar k toward his face with the left hand in which he held the knife. Tayl or then took a long stabbing device from his right pocket. After several failed attempts of attacking Clark, Taylor rode away on a bicycle. Clark told Tashiro that he was afraid for his life. Officer Michael Benas was dispatched to Davis’s residence at 2:19 a.m. on August 13th. As Benas approached Davis’s residen ce, he saw someone dive head first onto a nearby porch on North Third St reet. The location was just north of the address given to Benas by the dispatcher. Benas stopped his vehicle and found Taylor hiding behind a bush near the porch. Benas detained Taylo r, searched him, and found a folding pocket knife, a knife sharpener, a gla ss smoking pipe and a small ba ggie of crystalline substance that appeared to be methamphetamine . The substance was .32 grams of methamphetamine, a usable amount. Tashiro c ontacted Taylor at the police station. Taylor appeared to be under the influence of a controlled substance. Taylor’s blood sample tested positiv e for the presence of methamphetamine. At trial, Clark was uncooperative and initia lly stated that he had no recollection of the events on August 13th. He also di d not remember making the 911 call.
Clark later testified that he and Taylor had exchan ged messages on Facebook in the days leading up to the attack. Defense counsel successfully ad mitted into evidence Taylor’s Facebook page and an entry from Clark that counsel described as threatening to5 Taylor. 4 There were entries from June and July, as well as August 9th and 12th. Clark did not go as far as to desc ribe the exchanges from either party as threats, but acknowledged they contained pr ofane language and insults. Clark believed this was the reason Taylor attacked him. Clark wrote to Taylor that he was not “scared of your tweaking punk ass,” and “I’m not scared of you.” Although Clark wrote these comments to Taylor, Clark said that he was afraid of Taylor. Clark explained that he recalled walki ng up to Davis’s house and Taylor coming out of the bushes, swinging a knife at him. Taylor was close enough to Clark’s face to scare him. Clark acknowledge d it was his voice on the record ing of the 911 call. Clark also stated he was uncooper ative during direct examinati on because he was afraid of Taylor. Clark explained that when he drove to Davis’s house after work on the day of the attack, a man named Danny was in the car with him. Clark could not recall where Danny was when Taylor attacked him, but he though t Danny was either inside the house already or was entering the house.
DISCUSSION Sufficiency of the Evidence Taylor contends there was insufficient evidence adduced at trial to show an attempted criminal threat. We disagree. In assessing a claim of insu fficiency of evidence, the re viewing court’s task is to
review the entire record in th e light most favorable to the judgment to determine whether
it contains substantial evidence

― evidence that is reasonable, credible, and of solid value
such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. The standard of review is the same in cases in which the pr osecution relies mainly

4 These exhibits were defense exhibits “C ” and “D” and were not made part of the record on appeal.6 on circumstantial evidence. It is the jury, not the appella te court, which must be convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the re viewing court that the circumstances might also reasonably be r econciled with a cont rary finding does not warrant a reversal of the judgment. ( People v

. Rodriguez (1999) 20 Cal.4th 1, 11; see
also Jackson v

. Virginia (1979) 443 U.S. 307, 317-320; People v

. Johnson (1980) 26 Cal.3d 557, 578.) In reviewing a challenge to the sufficiency of the evidence, appellate courts do not
determine the facts. We examin e the record as a whole in th e light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably
deduce from the evidence in su pport of the judgment. ( People v

. Guerra (2006) 37 Cal.4th 1067, 1129 [questi oned on another ground in People v. Rundle (2008) 43 Cal.4th 76]; People v

. Kraft (2000) 23 Cal.4th 978, 1053.) Unless the testimony of a single witness is physically impossible or inherently im probable, it is sufficie nt for a conviction. (Evid. Code, § 411; People v

. Young (2005) 34 Cal.4th 1149, 1181.) An appellate court must accept logical in ferences that the jury might have drawn from circumstantial evidence. ( People v

. Maury (2003) 30 Cal.4th 342, 396.) Before setting aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear that there wa s no hypothesis what ever upon which th ere was substantial evidence to support the verdict. ( People v

. Conners (2008) 168 Cal. App.4th 443, 453; People v

. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) As Taylor acknowledges, making an attempte d criminal threat is an offense. For a
criminal threat to be an attempted crime, the victim need not be in fear. ( People v

. Toledo (2001) 26 Cal.4th 221, 230-232 ( Toledo ).) A “defendant can be found to have committed the crime of attempted criminal threat only if he or she acts with the specific intent to make the very kind of threat—that is, ... ‘on its face and in the circumstances in7 which it is made so un equivocal, unconditional, immediate and specific as to the person
threatened as to conv ey a gravity of purpose and immi nent prospect of execution’” applicable to section 422. ( Toledo , at p. 232.) The angry exchanges between Taylor and Clark dated back to June and July. Taylor’s threatening phone calls to Davis occu rred on the 8th and 9th of August. Taylor and Clark exchanged angry Facebook entrie s with each other on August 9th and 12th, immediately prior to the incide nt on August 13th. Although the jury acquitted Taylor of assault with a deadly weapon, it could have found th at Taylor still uttered the threat “to fuckin[g] kill” Clark while holding a knife. 5 Given the animosity between Clark and Tayl or, the jury in the factual context of this case could find that Taylor’s threat to Clark was unequivocal, unconditional, immediate, and with the intent to convey gravity of purpose and imminent prospect of execution even if Clark did not fear Taylor or believe Taylor was going to actually attack
him. We find that there is substantial ev idence to support Ta ylor’s conviction for attempting a criminal threat.
Three Strikes Sentence The People filed a cross-appeal contendi ng the three strikes law mandates that Taylor’s sentence for possession of methamphetamine had to be a consecutive rather than a concurrent sentence. The People argue that the offense of attempting a criminal threat had a separate objective and purpose from possession of methamphetamine, occurred on a different occasion, a nd did not arise from the same set of operative facts. The People
contend the trial court erred in sentencing Taylor concurre ntly on the drug possession count and for failing to state its reasons for imposing its sentence. The People further

5 The jury found true the allegation that Taylor personally used a knife during the commission of count 1.8 request that this court order a consecutive se ntence on both felony counts pursuant to section 1260. We reject these contentions. At the sentencing hearing, the prosecuto r argued that consecu tive sentencing was mandated by section 667, subdivision (c)(6). The prosecutor asked the court to impose an eight month term on count 3, double it purs uant to the three strikes law, and make the
sentence consecutive to count 1. The court e xplained that it intended to impose the strike and the prior serious felony enhancement. The court described the sentence of eight years that it was imposing as “somewhat harsh, ” but noted its hands were tied by the fiveyear prior serious felony enhancement. The c ourt rejected the prosecutor’s argument that
the three strikes law mandated consecutive sent encing in this case. The court imposed the two-year midterm on count 3, doubled it purs uant to the three strikes law, and ordered
that it be served concu rrently with the rest of Taylor’s sentence. Section 667, subdivision (c)(6) mandate s consecutive sentenci ng only when the current felony offenses were not committed on the same occasion and did not arise from the same set of operative facts. 6 ( People v

. Hendrix (1997) 16 Cal.4th 508, 513-514; People v

. Jones (1998) 67 Cal.App.4th 724, 728-72 9.) The analysis employed under
section 654 is irrelevant to secti on 667, subdivision (c)(6) and (c)(7). ( People v

. Deloza (1998) 18 Cal.4th 585, 593-595 ( Deloza ).) To determine whethe r the offenses occurred
on the same occasion and did not arise from the same opera tive set of facts, courts should apply the ordinary, commonly understood meaning of these terms to the facts. Offenses occurring on the same occasion require a close temporal and spatial proximity. ( People

6 Section 667, subdivision (c )(6) provides: “If there is a current conviction for more than one felony count not committed on the same occasi on, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subd ivision (e).”9 v

. Lawrence (2000) 24 Cal.4th 219, 226, 229-232; Deloza , supra , 18 Cal.4th at pp. 594- 595.)
The court in People v

. Hall (1998) 67 Cal.App.4th 128 ( Hall ), explained the following process courts should follow in analyzing whether or not a consecutive sentence is mandatory under the three strikes law: “In Three Strikes cases, the court reviews the facts established during trial as well as those proffere d at sentencing, and based on its assessment of those facts, it decides whether the current felonies occurred ‘on the same occasion’ and arose ‘fro m the same set of operative facts.’ “If following further hearing, ther e still is no evidence from which the trial court can determine that the crimes occurred ‘on the same occasion’ and arose ‘from the same set of operative facts’ the court is not required to impose consecutive terms. In that situation, the trial court must exercise its discretion to impose concu rrent or consecutive terms. The law deprives the trial court of discretion and requires consecutive sentencing only if the current crimes arose on di fferent occasions and out of different sets of operative facts. It is of no import that the record fails to reveal whether or not the offenses occurred ‘o n the same occasion’ if the evidence supports the court’s determination th at the offenses arose ‘from the same set of operative facts.’ For the same re ason, if the offenses occurred ‘on the same occasion,’ it does not matter whether there is evidence that they did or did not arise from the same set of operative facts.’ Under these circumstances, the court retains discretion under ordinary sentencing principles to decide whether to impos e consecutive or concurrent terms.’” ( Hall , supra , 67 Cal.App.4th at pp. 138-139.) The People argue the sentence that should run consecutively in this case is the drug possession offense. In People v. Bland (1995) 10 Cal.4th 991 ( Bland ), the defendant was convicted of a drug offense and an enhancement for being armed with a firearm during the commission of a felony. The question the Bland court confronted was whether a defendant convicted of a possessory drug offense was subject to the arming enhancement when the defendant possessed both the firearm and the drugs, kept them together, but was not present when the police seized them from his home. The Bland court held that the enhancement applied b ecause possession of drugs is “a ‘continuing’10 offense ... that extends through time.” ( Id . at pp. 995, 999; also see People v. Delgadillo (2005) 132 Cal.App.4th 1570, 1575 [manufacture of metham phetamine is a continuing crime that extends through time and is not limited to a discrete event].) In their briefs, the parties agree that Taylor likely possessed the drugs prior to committing the attempted criminal threat. Implicit in this fact ual agreement is that Taylor continued to possess drugs while committing the criminal threat and until his arrest. If this is so, then Taylor co mmitted both offenses on the same occasion because the drug possession was a continuing offense that wa s occurring as he made the attempted criminal threat. ( Bland , supra , 10 Cal.4th at pp. 995, 9 99.) The mandatory sentencing provisions of the three strikes law do not appl y even if the two offenses did not arise from the same set of operative facts. ( Hall , supra , 67 Cal.App.4th at pp. 138-139.) During oral argument, the People argued th e trial court failed to make a factual finding concerning whether the two offenses occurred on the same occasion and that imposition of the consecutive sentence for drug possession was mandatory under the
three strikes law. When asked whether there were any facts from which this court or the
trial court could infer that a ppellant acquired methamphetamine after the commission of the attempted criminal threat, the People reluctantly conceded that there were none. It is clear that Taylor was arrested very shortly after the inci dent with Clark. Officer Tashiro was dispatched to Davis’s resi dence at 2:15 a.m. as Clark was talking to the 911 operator. Officer Benas was dispatched to the same location four minutes later. On his way to Davis’s residence, Benas encount ered Taylor one street over and just north of Davis’s residence diving for cover in an atte mpt not to be spotted. Taylor had left the scene of the incident only minutes earlier. Officers not only found methamphetamine on Taylor, but narcotics paraphernalia. Taylor was also under the influence of drugs when
he was arrested11 After reviewing the evidence available to the trial court, we conclude the only
reasonable inferences that can be drawn from the instant reco rd support the theory that appellant possessed methamphetamine as he committed the attempted criminal threat. Taylor had virtually no time to acquire me thamphetamine after making the attempted criminal threat. Drug possession is a continuing offense. ( Bland , supra , 10 Cal.4th at pp. 995, 999.) The two offenses are in close sp atial and temporal proximity and occurred on the same occasion even if they did not ar ise from the same set of operative facts. Therefore, the trial court was not mandated by section 667, subdivision (c)(6) to sentence Taylor consecutively on counts 1 and 3. Because the trial court was only mandate d to state its reasons for imposing a discretionary consecutive prison term (Cal. Ru les of Court, rule 4.406(b)(5) & (b)(6);
Hall , supra , 67 Cal.App.4th at p. 138) and not fo r imposing a concurrent sentence (Cal. Rules of Court, rule 4.406(b); People v

. Lepe (1987) 195 Cal.App.3d 1347, 1350), the trial court did not err in failing to state its reasons for imposing a concurrent sentence.
The record is clear th at the trial court did not consider Taylor’s offenses worthy of the discretionary imposition of consecutive prison terms. We hold the trial court did not abuse its sentencing discretion. 7
DISPOSITION The judgment is affirmed.

7 The trial court stated that Taylor’s se ntence of eight years was “somewhat harsh.” Had we found the trial court was mandated to impose a consecutive sentence on count 3, we would have remanded the case for resenten cing by the trial court for it to fashion a sentence it considered just and also would have declined the People’s invitation to impose the consecutive sentence ourselve s pursuant to section 1260. (See Hall , supra , 67 Cal.App.4th at p. 141.)