P. v. Taplin

 

 

 

 

 

 

 

 

 

 

Filed 6/14/13  P. v. Taplin CA3

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   DWAYNE MARLIN TAPLIN II,                           Defendant and Appellant.

C067534   (Super. Ct. Nos. 09F04776 & 09F05082)

 

 

 

 

            A jury convicted defendant Dwayne
Marlin Taplin II of second degree robbery
and assault with a semiautomatic firearm,
and it found true certain enhancement allegations.  The trial court sentenced defendant to 19
years in state prison. 

            Defendant now contends (1) the
prosecutor committed prejudicial misconduct in closing argument by misstating
the law regarding circumstantial evidence, and (2) the trial court abused its
discretion in admitting photos depicting defendant holding firearms.  We conclude defendant’s contentions lack
merit, and we will affirm the judgment.

BACKGROUND

            On February 17, 2009, David Roots mentioned to his friend,
Vincent Bracy, that he was interested in buying a two-door Lexus with his
$6,000 tax refund.  Bracy later told
Roots that he had located a similar car on Craigslist, and had arranged for the
prospective seller to bring the car that night to a Shell gas station in Sacramento. 
Roots drove to the gas station with his fiancée, Bracy, and another
friend. 

            A few minutes after they arrived, a
man pulled up in a two-door, green Lexus with a tan interior.  At trial, Roots identified defendant as the
driver.  Bracy told defendant to open the
hood of the car, but when he failed to do so, Bracy reached into the car and
released the hood latch himself.  Roots
thought this was strange, given that Bracy had indicated he did not know the
seller of the car. 

            Bracy told Roots to get in the car
and go for a ride.  With defendant
driving, the two men pulled out of the gas station and drove through a
residential area.  When Roots asked
defendant some questions about the car, instead of responding he slowed down,
looked at his cell phone, and turned down a side street.  Defendant stopped the car, pulled out a
semiautomatic gun, chambered a round and pointed the barrel at Roots’s
head.  Defendant said, “Give [me] your
fucking money right now.” 

            Roots was carrying over $3,000 in
cash and money orders.  He pulled some of
the money from his pocket and threw it on the floorboard, telling defendant he
could have it.  Roots pushed the gun down
with both hands, and it went off, striking him above the right knee.  Roots opened the door to escape, but
defendant grabbed him by the collar and said, “[G]et your ass back [in]
here.”  Defendant reached into Roots’s
pocket to get more money. 

            Roots managed to get out of the car
and use his cell phone to call 911, telling the operator that he did not know
who shot him.  The call was made around 7:48 p.m.  With
blood running down his leg, he walked toward an apartment complex where he
collapsed in a pool of blood.  Emergency
personnel arrived and transported Roots to a hospital, where he underwent
surgery for a damaged artery.  He could
have bled to death without the surgery. 

            Detective Zachary Bales interviewed
Roots at the hospital.  Roots described
the gunman as an African American man, about five feet six inches tall, and 260
to 280 pounds.  The robber wore a striped
polo shirt and a small knitted cap.  His
description was consistent with a surveillance video that depicted the driver
of the Lexus at the Shell station. 

            On February 21, Detective Bales
showed Roots a six-person photo lineup that included a photo of a man who had
been pulled over in Fairfield while driving a green Lexus. 
Roots selected someone other than the person of interest, and said that
if the robber was in the lineup, Roots was 75 percent sure that was him.  Defendant, who was not a suspect yet, was not
in the lineup.  When shown the photo of
the car that was pulled over in Fairfield, Roots was positive it was not the same car
in which he was robbed. 

            Detective Bales found an expired ad
for a similar Lexus on Craigslist.  The
ad listed a contact number of 510-860-5585, which was a cell phone belonging to
Damario Turner of Richmond.  The ad had been taken down by
February 17, the day of the shooting. 
DMV records disclosed that Turner owned a 1992 two-door green
Lexus.  Bales went to Turner’s home and
found the car, with a bullet hole in the side. 
Subsequent investigation revealed gunshot residue on the dashboard.  At trial, Roots identified Turner’s Lexus as
the one he was in during the robbery. 
Roots had never seen Turner’s car before that night, but had seen Turner
hanging out with Bracy on previous occasions. 


            Detective Bales obtained records for
Turner’s cell phone number, as well as Bracy’s cell phone number, which was
916-821-3275.  On the day of the
shooting, there were 25 phone calls between Bracy and Turner.  In addition, between 3:02 p.m. and 6:01 p.m., Turner made 14 phone calls to defendant’s
home phone number in Vallejo, which was 707-647-1006.  Cell
phone records indicated that in the early evening of February 17, Turner
traveled from Richmond to Sacramento and then back to Richmond later that night.  At 5:33 p.m., a call between Turner’s cell phone and
defendant’s phone number pinged off of a cell phone tower in Vallejo. 
Between 7:48 p.m.
and midnight, there were seven calls between Turner and
Bracy and one between Turner and defendant. 


            On April 14, Detective Bales
prepared a photo lineup that included a picture of defendant, and showed it to
Roots.  Roots selected defendant’s photo
and said he was positive he was the one who robbed him. 

            Two months later, while looking at a
friend’s Myspace page, Roots saw a photo of a man who resembled the person who
shot him.  Roots clicked on the photo,
which opened up the man’s Myspace page, which contained a larger version of the
photo.  The larger photo depicted the man
holding two guns crossed over his chest. 
Roots could tell from the enlarged photo that the man was definitely the
person who robbed him because he had a “face you don’t forget.”  One of the guns in the photo resembled the
chrome or grey semiautomatic handgun used in the robbery. 

            Roots called Detective Bales and
told him about the Myspace photos.  The
page was registered under the first name of “Tap-titty” and the last name of
“DA Manager.”  Other evidence revealed
that defendant referred to himself as “Tap.” 
Messages from the Myspace page were exchanged with other Myspace pages
linked to Bracy and Turner, including a page for Turner’s rap group, “Da 3For1
Deal.” 

            On June 17, Detective Bales
interviewed defendant in jail, where he was being held on unrelated
charges.  Defendant denied knowing anything
about the robbery of Roots, and denied knowing Bracy or Turner.  He also denied having a Myspace page.  On the same day, defendant made a phone call
to a woman, who told him that the police were looking at his Myspace page and
were seeking additional photos of him. 
Defendant told the woman, “I ain’t got no MySpace,” gave her what
appeared to be a password, referred again to Myspace, and said “but I don’t got
nothing like that though.  You know what
I mean?”  The following day, Detective
Bales discovered that all of the images and messages had been deleted from
Bracy’s Myspace page. 

             On June 18, defendant called the cell phone of
Gregory Ortega, a member of Turner’s rap group. 
Defendant said, “Don’t say no names--don’t say no names or nothing, nigga.  They got this on recorder nigga.  I’m in jail boy.”  Defendant stated, “They raided my house on
some bullshit,” to which Ortega responded, “They raiding everybody’s shit right
now, cuz.”  Defendant replied, “Yeah, I
heard.  I mean, you know, nigga.  Somebody tellin’.”  Ortega responded, “I’m kind of picturing who
it was. . . .  [¶]
. . . [¶] . . . It was old boy.”  Defendant replied, “Yeah.”  Defendant told Ortega that the crime of which
he was accused occurred in February, adding, “I just wanted to, you know, get
the word out there,” and to “tell that nigga, nigga I don’t know nothing.  He don’t--you know.” 

            In href="http://www.mcmillanlaw.com/">closing argument during trial, the
prosecutor argued that the circumstantial evidence supported the identification
by Roots that defendant was the robber. 
Because Roots had seen Turner with Bracy before and could identify him,
Turner and Bracy needed defendant to pretend to be the seller of the car in
order to rob Roots.href="#_ftn1"
name="_ftnref1" title="">[1]  The
prosecutor maintained that Turner’s cell phone call pattern on the date of the
crime indicated that he made the necessary arrangements with defendant earlier
in the day, and then picked him up at his residence in Vallejo on the way to Sacramento.  The
prosecutor argued that defendant’s phone calls while in jail supported an
inference that he was trying to suppress evidence against him.  Additional facts are referenced in the
discussion as relevant to defendant’s contentions.

            Defense counsel argued that Roots
was mistaken when he identified defendant, and that the href="http://www.fearnotlaw.com/">circumstantial evidence was consistent
with an innocent man being concerned that he was being falsely accused of a
crime he did not commit.  According to
defense counsel, the cell phone evidence did not demonstrate that Turner picked
up defendant, who may have been sitting at home when the crime occurred. 

            The jury convicted defendant of
second degree robbery and assault with a semiautomatic firearm.  (Pen. Code, §§ 211, 245, subd. (b).)href="#_ftn2" name="_ftnref2" title="">[2]  The
jury also found that defendant personally used a firearm and caused great
bodily injury in the commission of the offenses.  (§ 12022.53, subd. (b), 12022.5, subd. (a),
12022.7, subd. (a).)  The trial court
sentenced defendant to a total prison term of 19 years in href="http://www.fearnotlaw.com/">state prison.  

DISCUSSION

I

            Defendant contends the prosecutor
committed prejudicial misconduct in closing argument by misstating the law
regarding circumstantial evidence. 
Defendant points to the prosecutor’s rebuttal argument, in which she
stressed that even if some of the circumstantial evidence could have an
innocent explanation, this did not undermine the evidence as a whole.  In defendant’s view, the prosecutor
improperly conveyed to the jury that it could not reject href="http://www.mcmillanlaw.com/">circumstantial evidence of guilt unless
the defense had introduced evidence to support an alternate conclusion. 

            During rebuttal, the prosecutor
stated:  “What I want to talk to you guys
about is, circumstantial evidence is not like a chain where one link breaks and
the whole thing is thrown out.  It’s like
a rope.  And I’ve talked about wrapping
the defendant up, wrapping that identification up, and that’s what it’s doing
in this case.

            “I’m not suggesting that one of the
strains [sic] of the circumstantial
evidence is broken, but if you go back and look at the evidence and you have a
problem with one of the pieces of circumstantial evidence, it doesn’t
break.  It’s not all of a sudden all
thrown out, all done, the whole case is thrown out.  It’s a rope. 
It’s tied together and it gives strength to the rest of the evidence.  Doesn’t automatically break.

            “In this case it actually binds and
supports the direct evidence.  I just
wanted you guys to understand you don’t throw everything out.

            “The other thing about href="http://www.fearnotlaw.com/">circumstantial evidence is your
conclusions have to be reasonable.  If
you noticed reasonable is used a lot in those jury instructions because that’s
what it is[,] the reasonableness and common sense.

            “What you just heard the defense
attorney do--no disrespect to Mr. Renwick at all, he’s a great attorney--is
speculate for 30 minutes.  Yes
. . . are there other possible things out there that could explain
the evidence?  Yes.  Are there possible things that you’ve heard
nothing about?  Yes.  Yes, it’s possible there’s some other reason
that the cell phones are pinging, okay. 
That’s not based on anything you’ve heard in court.

            “Circumstantial evidence and those
conclusions have to be reasonable, and they have to be based on the
evidence.  You could sit and speculate
all day about what a call may mean, may not mean.  You have to consider that with the
evidence.” 

            Defense counsel objected and
requested a sidebar.  Counsel believed
that the prosecutor suggested that the defense was required to introduce
evidence to support a reasonable alternative theory pointing to innocence,
thereby shifting the burden of proof to the defense. 

            The prosecutor responded that she
simply suggested that inferences drawn from circumstantial evidence have to be
reasonable, and based on the evidence as a whole. 

            The trial court overruled the
objection, stating that it did not interpret the prosecutor’s argument as
shifting the burden of proof to the defendant. 


            Relying primarily on People v.
Hill (1998) 17 Cal.4th 800 (Hill),
defendant maintains the trial court erred, and that the jury likely construed
the prosecutor’s comments as stating that defendant had the burden of producing
evidence supporting a reasonable doubt of his guilt.  We disagree.

            “To prevail on a claim of href="http://www.mcmillanlaw.com/">prosecutorial misconduct based on
remarks to the jury, the defendant must show a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or erroneous
manner.  [Citations.]  In conducting this inquiry, we ‘do not
lightly infer’ that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor’s statements.  [Citation.]” 
(People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on
another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

            In
Hill, the prosecutor improperly shifted the burden of proof to the
defendant when she explained reasonable doubt to the jury as follows:  “ â€˜[I]t must be reasonable.  It’s not all possible doubt.  Actually, very simply, it means, you know,
you have to have a reason for this doubt. 
There has to be some evidence on which to base a doubt.’  . . .  ‘There must be some evidence from
which there is a reason for a doubt.  You
can’t say, well, one of the attorneys said so.’ 
(Italics added.)”  (>Hill, supra, 17 Cal.4th at p. 831.)

            The California Supreme Court said
that “to the extent [the prosecutor] was claiming there must be some href="http://www.fearnotlaw.com/">affirmative evidence demonstrating a
reasonable doubt, she was mistaken as to the law, for the jury may simply not
be persuaded by the prosecution’s evidence. 
[Citation.]  On the other hand,
[the prosecutor] may simply have been exhorting the jury to consider the
evidence presented, and not attorney argument, before making up its mind.”  (Hill,
supra, 17 Cal.4th at pp. 831-832.) 
The Supreme Court said the question was arguably close, but it concluded
it was reasonably likely that the jury understood the comments “to mean
defendant had the burden of producing evidence to demonstrate a reasonable
doubt of his guilt.”  (Id. at p.
832.)  The Supreme Court reversed the
verdict in Hill, but it did so based upon “the many acts of
prosecutorial misconduct and other errors that plagued that trial.”  (People
v. Booker (2011) 51 Cal.4th 141, 186.)

name="citeas((Cite_as:_2007_WL_2999159,_*10_(C">            Unlike Hill,
this case was not plagued with many acts of prosecutorial misconduct, and the
prosecutor was not trying to explain to the jury the concept of reasonable
doubt.  Rather, the prosecutor commented
on the weakness of the evidence supporting an innocent interpretation of the
circumstantial evidence, and indicated there was no evidence to support the
defense theories.  She also exhorted the
jury to consider the evidence as a whole. 
There was no risk that the jury would construe the prosecutor’s
challenged remarks to mean defendant had the burden of proving reasonable doubt.  “A distinction clearly exists between the
permissible comment that a defendant has not produced any evidence, and on the
other hand an improper statement that a defendant has a duty or burden to
produce evidence, or a duty or burden to prove his or her innocence.”  (People v. Bradford (1997) 15 Cal.4th
1229, 1340.)

            Furthermore, the trial court clearly
instructed the jury that the burden of proof rested with the prosecution
(CALCRIM No. 220), and that the jury must follow its instructions, not the attorneys’
comments on the law (CALCRIM No. 200). 
It also properly instructed the jury on the use of circumstantial
evidence, advising the jurors that “when considering circumstantial evidence,
you must accept only reasonable conclusions and reject any that are
unreasonable.”  (CALCRIM No. 224.)  Considering the record as a whole, it is not
reasonably likely the jury construed the prosecutor’s argument to mean
defendant had the burden of producing evidence to demonstrate a reasonable
doubt.  Under the circumstances,
defendant’s claim of prosecutorial misconduct lacks merit.

II

            Defendant next contends the trial
court abused its discretion in admitting photos depicting defendant holding
firearms. 

            Two months after Roots identified
defendant in a photo lineup, he saw a photo of a man who resembled the person
who shot him while looking at a friend’s Myspace page.  When Roots clicked on the photo, it opened up
defendant’s Myspace page, which contained a larger version of the photo.  The larger photo depicted defendant holding
two guns crossed over his chest.  One of
the guns in the photo resembled the chrome or grey semiautomatic handgun used
in the robbery.  Roots could definitively
discern from the larger photo that it depicted the man who shot him. 

            Before trial, href="http://www.fearnotlaw.com/">defense counsel moved to exclude the
photos as prejudicial character evidence, arguing that any probative value was
outweighed by the prejudicial effect. 
The prosecutor countered that the photos were relevant because they
supported Roots’s identification of defendant and because they demonstrated
that defendant had access to a gun that was similar to the one used in the
robbery. 

            The trial court ruled that the
evidence was relevant to show that the victim identified defendant
independently of the photo lineup, to show that defendant was familiar with
guns, and that he had access to a firearm that was similar to the one the
victim said was used in the robbery.  The
trial court concluded that the prejudicial effect of the evidence did not
outweigh its probative value.  We agree.

            The photo was highly relevant to the
issue of identification, because unlike a photo lineup, there was no
possibility of undue suggestion.  Rather,
Roots was viewing a friend’s Myspace page and was surprised to see a photo of
the man who shot him.  This corroborated
his prior identification, which was important given defendant’s defense of
mistaken identity.  Moreover, defendant
was holding a gun that looked like the one he used to shoot Roots.  As the trial court recognized, had defendant
been holding a shotgun it might have been too inflammatory.  But because it was a handgun that looked
similar to the one used in the robbery, it undermined any claim that defendant
did not have access to handguns so he could not have been the robber.

            When the admissibility of
photographic evidence is challenged on the ground it is unduly inflammatory,
the trial court’s exercise of discretion will not be disturbed unless the
probative value of the evidence is clearly outweighed by its prejudicial
effect.  (People v. Crittenden (1994) 9 Cal.4th 83, 133-134.)  Here, the trial court did not abuse its
discretion.

            In any event, even if the trial
court erred, the error was harmless.  The
evidence established that Bracy and Turner arranged to pretend to sell Turner’s
car to Roots in order to rob him of his $6,000 tax refund.  Roots had seen Turner with Bracy so Turner
could not perpetrate the robbery lest he be recognized.  Other evidence tended to prove that the two
men involved defendant in their scheme, as there was a flurry of cell phone
activity between the three men on the day of the robbery.  More importantly, Roots positively identified
defendant in the second photo lineup. 
Although Roots selected someone else in the first lineup, defendant was
not in that lineup and Roots did not claim to be sure of his selection; he said
that if the robber was in the lineup and he had to choose someone, he was 75
percent sure of his selection.  Even
without admitting the Myspace photo, the fact of the victim’s independent
identification of defendant on Myspace would have been relevant and admissible,
as well as defendant’s jail telephone conversation with a woman in which he
conveyed a coded message to destroy the Myspace evidence, thereby demonstrating
a consciousness of guilt.  It is not
reasonably probable the jury would have returned a different verdict if the
photo had been excluded.  (>People v. Scheid (1997) 16 Cal.4th 1,
21.)

DISPOSITION

            The judgment is affirmed.

 

 

 

                                                                                                           MAURO                      , J.

 

 

We concur:

 

 

                    NICHOLSON                , Acting P. J.

 

 

                    ROBIE                           , J.