Filed 8/11/22 P. v. Taylor CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046288
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1511498)
v.
CHARLES MARSHALL TAYLOR,
Defendant and Appellant.
A jury convicted appellant Charles Marshall Taylor of committing multiple crimes
against his girlfriend, A.D., during a three-month relationship of threats, violence and
torture. The trial court sentenced him to an indeterminate term of seven years to life in
prison.
On appeal, Taylor argues that the trial court (1) erroneously denied his motion for
a mistrial due to the jury’s exposure to one member’s misconduct and (2) abused its
discretion by granting the prosecutor’s motion to quash a subpoena duces tecum issued
for A.D.’s employment records. Taylor also requests that this court independently review
A.D.’s sealed psychiatric records to determine whether any materials should have been
disclosed to the defense. Finally, in a supplemental brief, he argues that remand for
resentencing is required because he is entitled to the retroactive application of Senate Bill
No. 567 (2021-2022 Reg. Sess.) and Assembly Bill No. 518 (2021-2022 Reg. Sess.).
We reverse the judgment and remand the matter for resentencing in light of recent
ameliorative changes in sentencing law, but we reject Taylor’s claims of trial error.
I. BACKGROUND
A. The Information
On June 27, 2018, the Santa Clara County District Attorney’s Office filed an
information charging Taylor with torture (Pen. Code, § 2061; count 1), assault with a
deadly weapon (§ 245, subd. (a)(1); count 2), sodomy with an unconscious person (§ 286,
subd. (f); count 3), three counts of inflicting corporal injury on a spouse, cohabitant,
former spouse, or former cohabitant (§ 273.5, subd. (a); counts 4, 6, and 7), two counts of
assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); counts 5 and
8), threats to commit a crime resulting death or great bodily injury (§ 422; count 9), and
dissuading or attempting to dissuade a witness by use of force or threat of force (§ 136.1,
subd. (c)(1); count 10). As to counts 7 and 8, the District Attorney alleged that Taylor
personally inflicted great bodily injury under circumstances involving domestic violence
(§§ 12022.7, subd. (e), 1203, subd. (e)(3)).
B. The Prosecution’s Case
1. The Charged Crimes
In 2015, A.D. and Taylor dated for approximately three months. At the time,
Taylor was employed as a mixed martial arts (MMA) fighter. Sometime after they
started dating, Taylor moved into A.D.’s house.
During their relationship, Taylor physically attacked A.D. multiple times. Taylor
routinely strangled, punched, and kicked her. A.D. had recently finished a rehabilitation
program for alcohol abuse at the time she met Taylor, but Taylor once forced vodka
down her throat, telling her she was not an alcoholic. Another time, Taylor bit A.D.,
1
Unspecified statutory references are to the Penal Code.
2
burned her with a curling iron, and threatened to stick the curling iron in her vagina so
she would never be able to have sex again. On another occasion, he told her that he
would kill her and “skin [her].”
A.D. believed that Taylor was capable of carrying out his threats because he had
told her that he used to work as a “torturer” for the “Los Zetas” gang. Taylor told her that
if he were ever arrested, a family connection within the police department would procure
his release within 12 hours, and that Taylor would then kill A.D. and her family.
A.D. recalled several specific incidents of abuse. One time, Taylor was angry at
her and stabbed a knife toward her leg while she was lying in bed, cutting the mattress.
Another time, Taylor beat her, dragged her by the hair to the bedroom, taped her mouth,
and taped her arms and legs together, telling her this would give him time to go kill her
family. And once, Taylor smashed A.D.’s head against her car’s center console.
In May 2015, Taylor was scheduled to fight at an MMA match at the Tachi Palace
Hotel. At the hotel, Taylor hit, strangled, and suffocated A.D. About a week after the
incident at the Tachi Palace Hotel, A.D. and Taylor visited and stayed with Taylor’s
friend, Karla. While staying with Karla, A.D. seized an opportunity to get away from
Taylor and drove herself to Corona, California. When A.D. reached Corona, however,
she began to worry that Taylor would go after her family. About a week later, A.D.
called Taylor and left him voicemails “begging him to come back” to her.
Several weeks later, A.D. and Taylor got into a fight after Taylor accused A.D. of
cheating on him. Taylor punched A.D. in the face and strangled her. A.D. ran out of the
house, pounded on a neighbor’s door, and asked him to call the police. The police spoke
to A.D. when they arrived, and A.D. told officers that she had been drinking all day
before fighting with Taylor.
Taylor beat A.D. for the last time one evening after they had gone out to eat dinner
with one of Taylor’s friends. After dinner, Taylor became angry with A.D. and accused
3
her of wanting to “fuck his friend.” Taylor dragged A.D. by her hair, punched her face,
strangled her, kicked her, and choked her until she passed out. When A.D. regained
consciousness, she felt Taylor sodomizing her. A.D. screamed and yelled at him to stop
because it hurt. Taylor stopped after A.D. said that she needed to defecate.
In June 2015, the police came to speak to A.D. at her house. A.D. denied the
sexual assault and was hesitant about cooperating with the police. She refused to get out
of her bedroom and had to be taken out in handcuffs. She also declined to give her phone
to the police.
Because of Taylor’s repeated attacks, A.D. suffered numerous injuries. Among
other things, Taylor shattered A.D.’s orbital bone, which caused numbness on one side of
her face. A.D. required surgery on her nose and thumb. By the time of trial, one of her
knees continued to “hurt and pop.”
Because she was afraid of Taylor and believed she loved him, A.D. did not
initially report Taylor to the police. A.D. sometimes considered going to the hospital for
her injuries, but Taylor actively discouraged her from doing so. Taylor also limited
A.D.’s access to her cell phone, which A.D. became afraid to use.
A.D. was aware that Taylor’s ex-girlfriend, M.D., had previously accused him of
abuse. After A.D. reported Taylor’s abuse to the police, M.D. reached out to A.D. and
recounted her own experience of Taylor’s abuse.
A.D. admitted that she continued to struggle with alcohol issues during the
relationship and had been drinking the day that Taylor was arrested. A.D. had also made
certain statements to her mother about Taylor’s abuse that she did not disclose to the
police.
According to A.D.’s mother, A.D.’s demeanor changed after she started her
relationship with Taylor. Sometimes, A.D. called her mother when she was able to get
away from Taylor, and she was usually crying and hysterical on the phone. A.D. told her
4
mother about the incident at the Tachi Palace Hotel and said that Taylor threatened to kill
her and her family. A.D.’s mother suspected that A.D. was still drinking alcohol when
she was with Taylor, and A.D. told her mother that at one point, she was so out of touch
with reality that she felt Taylor’s back for the presence of angel wings.
2. Expert Testimony
A Sexual Assault Response Team examiner testified that she examined A.D. on
June 10, 2015. A.D. told the examiner that she could not remember everything that
happened to her because Taylor had strangled her until she lost consciousness. A.D.
reported drinking prior to the examination and, at one point, was drinking two bottles of
wine a day. The examiner found prominent bruises all over A.D.’s body, eye sockets,
and legs. A.D. described that she suffered from memory loss, throat and neck pain,
headaches, nausea, and lightheadedness. Though otherwise cooperative during the exam,
A.D. declined an examination of her genital area. As part of a strangulation assessment,
the examiner noted that A.D. had redness in her eyes. Based on A.D.’s appearance, the
examiner believed that “she was physically beat up pretty bad.”
A strangulation expert testified that strangulation can cut off the supply of blood to
the brain or the flow of blood from the brain, resulting in symptoms such as petechial
hemorrhages, bruises, and red eyes. Strangulation commonly does not produce external
injuries but does commonly cause internal injuries, such as throat pain. Repeated
strangulation can impact a victim’s memory.
An expert on intimate partner violence testified that a common misconception
about victims of intimate partner violence is that victims would have left a truly abusive
relationship. Difficulty leaving an abusive relationship may stem from the victim’s
continued feelings for the abuser, reliance on the abuser for financial and logistical
support, and fear that no one will believe the victim that the abuse has occurred. Victims
5
often “leave” their abuser five or seven times before they make a final break. Victims
often delay reporting, fail to call the police, or lie about where their injuries are from.
3. Prior Acts of Domestic Violence
M.D. was Taylor’s ex-girlfriend and was in a relationship with him on and off
between 2009 and 2011. Taylor often physically and sexually abused her when they
were together, and he frequently accused M.D. of cheating on him. Taylor sometimes
placed M.D. in an MMA “choke hold” and strangled her. M.D. often lost consciousness
when Taylor strangled her. She would sometimes fight back against Taylor but denied
being the aggressor. One time, Taylor threatened M.D. by saying that he would force her
to swallow her antidepressants to make it look like she had committed suicide, strangled
her, and forced her to have sex. Another time, Taylor punched M.D. in the ribs while she
was driving, strangled her, and later threatened her with a gun. Taylor regularly
threatened to kill M.D. and M.D.’s family. At the time, M.D. believed Taylor’s threats
because he said that he had connections with the Hell’s Angels and with the San Jose
Police Department.
C. The Defense Case
Taylor’s father testified that Taylor dated A.D. sometime in 2015. A.D.
sometimes referred to Taylor as her husband. In the days after Taylor’s Tachi Palace
Hotel match, A.D. called Taylor’s father while intoxicated several times. Taylor’s father
never saw Taylor be violent with A.D., but he did see bruises on A.D. twice, once on her
arm and another time on her left eye, which A.D. attributed to an ex-boyfriend.
Taylor’s father also recalled that Taylor dated M.D. He saw M.D. act violently
toward Taylor several times. One time, M.D. hit Taylor, but Taylor did not hit back and
just let her strike him. M.D. threatened Taylor once and told him that she as going to
make him spend the rest of his life in prison.
6
Taylor’s friend Karla testified that she and her daughter went to watch Taylor’s
match at the Tachi Palace Hotel and Taylor and A.D. stayed at her house after the fight.
Karla saw no visible injuries on A.D. before or after Taylor’s Tachi Palace match, and
she did not notice any unusual behavior between the two of them. At Karla’s house, A.D.
got into an argument with Taylor and told him that he was being disrespectful toward her.
The following morning, Karla saw A.D. and Taylor laughing and giggling together.
Karla still did not see any injuries on A.D. Later, A.D. collected her belongings and told
Karla that she was leaving because Karla’s “friend” beat her. After A.D. left, she
exchanged several text messages with Karla. A.D. told Karla that she was waiting for
Taylor in San Diego and that she loved Taylor. The next day, A.D. came back to Karla’s
house and tried to get Taylor to leave with her, which Taylor declined to do.
D. The Verdict and Sentencing
On June 29, 2018, while the jury was deliberating, the trial court removed Juror
No. 5 and replaced her with an alternate juror. The trial court denied Taylor’s motion for
a mistrial due to juror misconduct. That same day, the reconstituted jury convicted
Taylor of all the charged counts and found true all the alleged enhancements.
On September 17, 2018, the trial court sentenced Taylor to seven years to life for
his conviction for torture (§ 206; count 1) and imposed but stayed determinate terms for
the rest of his convictions.2
2
The trial court imposed and stayed the following determinate terms for Taylor’s
remaining convictions: an upper term of four years for assault with a deadly weapon
(§ 245, subd. (a)(1); count 2); an upper term of eight years for sodomy with an
unconscious person (§ 286, subd. (f); count 3); three upper terms of four years for
inflicting corporal injury on a spouse, cohabitant, former spouse, or former cohabitant
(§ 273.5, subd. (a); counts 4, 6, and 7); two upper terms of four years for assault by
means likely to produce great bodily injury (§ 245, subd. (a)(4); counts 5 and 8); an upper
term of three years for threats to commit a crime resulting in death or great bodily injury
(§ 422; count 9); and an upper term of four years for dissuading or attempting to dissuade
a witness by use of force or threat of force (§ 136.1, subd. (c)(1); count 10). The trial
7
II. DISCUSSION
A. Mistrial Due to Juror Misconduct
Taylor argues that the trial court deprived him of a fair trial by only discharging a
juror who had discussed during deliberations her personal experience of domestic
violence—including a comment that alluded to Taylor’s decision not to testify—rather
than declaring a mistrial. Because the trial court’s inquiry of the remaining jurors
rebutted the presumption of prejudice from the discharged juror’s misconduct, we discern
no error in the decision to permit deliberations to begin anew with an alternate.
1. Background
On June 28, 2018, a day after the jury began deliberations, Juror No. 12 sent a note
to the trial court reporting that Juror No. 5 had told the other jurors that some of her past
experiences were “making it difficult [for her] to be impartial.” When questioned, Juror
No. 12 explained to the trial court that Juror No. 5 had discussed “her history of domestic
violence” and how that “makes it difficult for her to be impartial.” Juror No. 12 stated:
“[I]t was regarding I think her husband who had been arrested and there was some sort of
court case to where the defendant didn’t take the stand because he did not want to commit
perjury, something along those lines, and she said she was afraid to disclose it. It was a
little hard to understand [Juror No. 5 because] she was really breaking down. But that’s
the—the gist that I got from [her] statement.” Juror No. 12 opined that Juror No. 5 was
trying to deliberate but was bringing up issues that were “specific to her experience” that
were “kind of clouding” the current case. According to Juror No. 12, all of the jurors
were present when Juror No. 5 made statements about her personal experiences, and
“eight to five other jurors” felt uneasy and concerned about Juror No. 5’s behavior.
court also imposed and stayed two five-year terms for the enhancements alleged as to
counts 7 and 8.
8
Outside Juror No. 12’s presence, defense counsel requested a mistrial on the
ground that Juror No. 5 had injected external matters into the deliberative process and
may have tainted the jury as a whole.
The trial court questioned Juror No. 5 about whether she was having any trouble
with following the jury instructions, applying the law, or being fair and impartial to both
sides. Initially, Juror No. 5 denied any misconduct occurred and denied that she had
omitted any information on her juror questionnaire. After being questioned several times,
Juror No. 5 eventually acknowledged: “I’m not exactly sure. I’m not using—someone
mentioned something about my background or something if that was—if that was having
any [effect] on me [and] I said no. Does that make sense?”
The following day, the trial court questioned each juror individually. Although
Juror No. 5 had denied any misconduct, the remaining jurors each expressed concerns
that one juror was considering personal experiences, material, information, or topics that
they had been instructed not to consider. Every other juror nonetheless affirmed that they
would be able to set aside any inappropriate considerations and follow the trial court’s
instructions.3
Several of the jurors had more descriptive responses to the trial court’s questions.
Juror No. 1 expressed specific concerns about Juror No. 5 and stated that Juror No. 5 had
discussed “past personal experiences that did not tie to the evidence that was actually
presented.” Juror No. 5 also “seem[ed] as if she has a personal bias based on [her]
experiences that she mentions repeatedly.” Juror No. 1 also described that Juror No. 5
had said that she was having a hard time, specifically with regards to “to a certain
individual [(a witness)] involved with the case.”
3
Some of the jurors did not specifically identify Juror No. 5 as the juror who they
had concerns about, but the parties do not appear to dispute that the jurors were all
referring to problems stemming from a single juror: Juror No. 5.
9
Jurors Nos. 8, 9, 10, and 11 raised concerns about a fellow juror without
specifically identifying which juror they were referencing. Juror No. 8 said that there had
been “some personal experience references” from another juror. Juror No. 9 stated that
another juror’s “background” was causing that juror “a lot of emotional distress” and
“angst.” According to Juror No. 9, the juror in question was “saying that they are doing
their very best to ensure that they are not being impartial [sic] to the point that I can see
the angst that’s happening there.” Juror No. 10 said that a juror was “getting clouded”
based on her past. And finally, Juror No. 11 said: “I just know there’s a problem with
one person and . . . I believe this person is bringing in preconceived notions and what
they believe in and we weren’t supposed [to].”
The trial court removed Juror No. 5, finding that she was exhibiting bias despite
her denials, she was unable to follow the trial court’s instructions, and she was unable to
be fair and impartial. Concluding that the other jurors were “committed to their
responsibilities” and “had not been prejudiced in their own abilities to be fair and
impartial,” the trial court denied Taylor’s motion for a mistrial. The trial court also
concluded that “the other jurors are making all their best efforts to follow the law and the
Court’s instructions including struggling with the question how to respond to and/or deal
with their concerns about Juror No. 5’s conduct.”
After an alternate juror was selected, the trial court admonished the jury not to
speculate as to the reasons why Juror No. 5 was replaced and not to consider Juror
No. 5’s removal for any purpose. The trial court also instructed the jury to begin
deliberations anew and set aside all past deliberations.
That same afternoon, the jury reached a verdict as to all the charged counts.
2. Legal Principles
Because a jury’s verdict must be based on the evidence presented at trial and not
on extrinsic matters, a juror commits misconduct by “bring[ing] outside evidence into the
10
jury room [citation], inject[ing] the juror’s own expertise into the deliberations [citation],
or . . . receiv[ing] . . . information about a party or the case that was not part of the
evidence received at trial.” (People v. Wilson (2008) 44 Cal.4th 758, 829.) Misconduct
also includes discussing a defendant’s failure to testify at trial. (People v. Avila (2009)
46 Cal.4th 680, 726.) A trial court informed of possible juror misconduct has a duty to
investigate the allegation. (People v. Lomax (2010) 49 Cal.4th 530, 592.) “Juror
misconduct . . . raises a rebuttable presumption of juror bias and that the defendant
suffered prejudice.” (People v. Brooks (2017) 3 Cal.5th 1, 98 (Brooks).)
This presumption of prejudicial bias may be overcome by either an affirmative
showing that prejudice does not exist or by a reviewing court’s examination of the record
to determine whether “ ‘ “ ‘there is a reasonable probability of actual harm to the
complaining party.’ ” ’ ” (People v. Jackson (2016) 1 Cal.5th 269, 332 (Jackson).) “A
verdict must be reversed if the court ‘ “ ‘finds a substantial likelihood’ ” ’ that the
misconduct influenced the vote of one or more jurors.” (Ibid.)
Where the misconduct consists of a juror’s introduction of “extraneous material”
into deliberations, we consider “(1) if the extraneous material, judged objectively, is so
prejudicial in and of itself that it is inherently and substantially likely to have influenced a
juror; or (2) even if the information is not ‘inherently’ prejudicial, if, from the nature of
the misconduct and the surrounding circumstances, the court determines that it is
substantially likely a juror was ‘actually biased’ against the defendant.” (People v.
Nesler (1997) 16 Cal.4th 561, 578-579 (Nesler).) “The surrounding circumstances
include ‘the nature of the juror’s conduct, the circumstances under which the information
was obtained, the instructions the jury received, the nature of the evidence and issues at
trial, and the strength of the evidence against the defendant.’ ” (Jackson, supra, 1 Cal.5th
at p. 332.)
11
We review for substantial evidence the trial court’s credibility determinations and
findings of historical fact, and we review independently whether prejudice arose from the
misconduct. (See Jackson, supra, 1 Cal.5th at p. 332; Brooks, supra, 3 Cal.5th at p. 99.)
3. Analysis
Neither party challenges the propriety of the trial court’s investigation and
removal of Juror No. 5, but Taylor argues that the presumption of prejudicial bias raised
by the remaining jurors’ exposure to Juror No. 5’s misconduct was not rebutted. We
conclude that the presumption of prejudice has been rebutted because, on this record,
there is no substantial likelihood that any of the remaining jurors were actually biased
against Taylor. Accordingly, the trial court did not err in denying the motion for a
mistrial. (See Jackson, supra, 1 Cal.5th at p. 334.)4
As reported to the trial court by the foreperson, Juror No. 5’s misconduct consisted
of her highly emotional focus during deliberations on her own personal experiences with
domestic violence, including her husband’s arrest, and the decision of a criminal
defendant—believed by Juror No. 12 to be Juror No. 5’s husband—to forego testifying to
avoid committing perjury.5
4
Taylor appears to suggest that the trial court erred by failing to acknowledge that
the law presumes prejudice. But absent indications to the contrary, we presume the trial
court knew and followed the applicable law. (People v. Stowell (2003) 31 Cal.4th 1107,
1114; see also People v. Harris (2008) 43 Cal.4th 1269, 1304 (Harris) [trial court
implicitly recognized presumption of prejudice after an incident of jury tampering by
holding a prompt hearing to explore circumstances and possibility of bias].)
5
In his opening brief, Taylor argues that Juror No. 5’s personal comments
“extended for a day and a half of deliberations.” This claim is not supported by the
record. When the jurors were questioned by the trial court, multiple jurors gave
responses that indicated that Juror No. 5’s personal comments were not limited to a
singular instance. None of the jurors, however, indicated that that Juror No. 5’s
inappropriate comments encompassed the entirety of the jury’s deliberations.
12
We conclude, however, that Juror No. 5’s comments about her personal
experiences were not substantially likely to have improperly influenced the other jurors.
Juror No. 5 was removed from the jury and replaced with an alternate. (People v. Tafoya
(2007) 42 Cal.4th 147, 193 [removal of juror who committed misconduct rebutted
presumption of prejudice].) After the alternate was seated, the jury was instructed to
deliberate anew. Additionally, several of the jurors made comments demonstrating that
they understood that Juror No. 5’s statements should not be considered during
deliberations and were extraneous.6 When asked, each of the jurors affirmed his or her
ability to follow the trial court’s instructions and deliberate appropriately despite their
“struggles” with how to respond to Juror No. 5’s misconduct, and Taylor does not
identify anything in the record that would undermine the jurors’ responses. A trial court
can properly rely on a juror’s assurance that he or she can remain impartial and is in the
best position to observe a juror’s demeanor and assess his or her credibility. (Harris,
supra, 43 Cal.4th at pp. 1304-1305.) On the full record before us, crediting the trial
court’s implicit credibility determinations, we are satisfied that there is no substantial
likelihood that any remaining juror was actually biased against Taylor.
Relying on Nesler, Taylor argues that Juror No. 5’s misconduct was “so
prejudicial in and of itself that it is inherently likely to have influenced a juror” and that
bias was demonstrated without having to resort to a consideration of the surrounding
circumstances. (Nesler, supra, 16 Cal.4th at pp. 578-579.) Nesler, however, involved a
juror that received extraneous, damaging information about the defendant on trial. Even
then, the California Supreme Court examined the nature of the misconduct and the record
6
Juror No. 11 stated: “I just know there’s a problem with one person and . . . I
believe this person is bringing in preconceived notions and what they believe in and we
weren’t supposed [to].” And Juror No. 1 said that Juror No. 5 had brought up “past
personal experiences that did not tie to the evidence that was actually presented.”
13
as a whole before determining the existence of bias. (See id. at p. 582.) Judged
objectively, Juror No. 5’s statements, which did not expose the jury to extrinsic
information about Taylor or Taylor’s case, were not inherently prejudicial.
Likewise, we must reject Taylor’s claim that the trial court erred by relying on the
jurors’ responses that they could still be fair. To support his argument, Taylor relies on
several cases where a trial court found jury misconduct to be prejudicial despite the
jurors’ assurances of impartiality. These cases, however, are distinguishable as they all
involved the jury’s consideration of extrinsic evidence specific to the defendant on trial,
clear indications of bias from the remaining jurors, or situations where the jurors were
exposed to trial witnesses outside of the courtroom. (See Marshall v. United States
(1959) 360 U.S. 310, 312 [jurors exposed to information in news article that was
excluded from trial]; Irvin v. Dowd (1961) 366 U.S. 717, 727-728 [jurors said that they
would be fair and impartial to the defendant but eight of the 12 jurors had said that they
thought the defendant was guilty before the trial started]; Turner v. Louisiana (1965) 379
U.S. 466, 473 [two sheriff deputies that were in close and continual contact with the
jurors later testified as witnesses for the prosecution].) None of these situations are
present in this case.
For these same reasons, we also find no merit in Taylor’s claim that Juror No. 5’s
misconduct deprived him of his Sixth Amendment right to confront and cross-examine
witnesses. “When a juror communicates objective extrinsic facts regarding the defendant
or the alleged crimes to other jurors, the juror becomes an unsworn witness within the
meaning of the Confrontation Clause.” (Jeffries v. Wood (9th Cir. 1997) 114 F.3d 1484,
1490, overruled on another ground by Gonzalez v. Arizona (9th Cir. 2012) 677 F.3d 383,
389, fn. 4; see also Lawson v. Borg (9th Cir. 1995) 60 F.3d 608, 612.) Here, Taylor’s
constitutional rights were not implicated because Juror No. 5 did not communicate
extrinsic facts about him or his offenses.
14
We acknowledge that Juror No. 5’s comment about another defendant’s reason for
not testifying had the potential to invite other jurors to speculate as to why Taylor did not
testify. But the surrounding circumstances of the misconduct reflect no likelihood that
her statement influenced the other jurors. (Jackson, supra, 1 Cal.5th at p. 332.) The
record reflects that her statement was brief. Juror No. 12 indicated that Juror No. 5 made
a single vague and difficult-to-follow reference to her spouse’s decision not to testify.
Juror No. 12 gave no indication of “ ‘any open discussion or agreement among the jurors
evidencing a deliberate refusal to follow the court’s instructions.’ ” (People v. Hord
(1993) 15 Cal.App.4th 711, 726 [passing reference to defendant’s failure to testify was
not prejudicial juror misconduct]; see also People v. Manibusan (2013) 58 Cal.4th 49, 59
[fleeting reference to defendant’s failure to testify not prejudicial juror misconduct].)
Juror No. 12, the only one who appeared to have registered this aspect of Juror No. 5’s
comments, appropriately recognized it as improper. None of the other jurors mentioned
any discussion of Juror No. 5’s reference to her spouse’s trial, let alone Taylor’s decision
not to testify, and each of them more broadly understood Juror No. 5’s consideration of
her personal experience of domestic violence and its aftermath to be improper.7
Moreover, the jurors were properly instructed that a defendant has an absolute
constitutional right not to testify and that it was not to consider “for any reason at all” the
7
The trial court did not press the jurors for details about Juror No. 5’s statements
about perjury. The trial court explained that defense counsel “had indicated to me in
chambers this morning some concern about probing too specifically or deeply into that
topic with the other jurors because it might highlight the issue in a way that could further
prejudice the jury if there had been any prejudice at all and so I did take that approach.”
Defense counsel’s decision not to request a further inquiry on this subject may have been
strategic as additional questioning may have amplified the significance of Juror No. 5’s
statement. (See People v. Bell (2019) 7 Cal.5th 70, 120, fn. 19.) But by failing to “seek a
more extensive or broader inquiry” or “object to the trial court’s course of action,” Taylor
has waived any challenge to the trial court’s failure to examine the issue further. (People
v. Holloway (2004) 33 Cal.4th 96, 126 (Holloway).)
15
fact that Taylor did not testify at trial. (See People v. Coffman and Marlow (2004) 34
Cal.4th 1, 83 [jurors are presumed to follow instructions].) For these reasons, we
conclude it is not substantially likely that the remaining jurors were actually biased as a
result of Juror No. 5’s brief statement about perjury.
Accordingly, on this record, we conclude that the presumption of prejudice from
Juror No. 5’s misconduct was rebutted because there is no substantial likelihood that any
remaining juror was actually biased against Taylor. The trial court accordingly did not
err in denying the motion for a mistrial. (Jackson, supra, 1 Cal.5th 269, 334.)8
B. Taylor’s Request for A.D.’s Employment Records
Taylor argues that the trial court abused its discretion by granting the prosecutor’s
motion to quash his subpoena duces tecum for A.D.’s employment records. 9 This abuse
of discretion, he further contends, effectively denied him his right to present a defense
and to confront witnesses. Taylor had sought the records on the theory that they were
“necessary to discover the complaining witness [A.D.’s] mental state and/or emotional
stability, to determine the complaining witness’s tendency to make incredible claims and
8
Citing to Nesler, supra, 16 Cal.4th 561, Taylor argues that Juror 5’s misconduct
amounts to “structural error” that requires reversal without an examination of prejudice.
“[S]tructural errors not susceptible to harmless error analysis are those that go to the very
construction of the trial mechanism—a biased judge, total absence of counsel, the failure
of a jury to reach any verdict on an essential element.’ ” (People v. Anzalone (2013) 56
Cal.4th 545, 554.) We need not decide whether individual juror misconduct amounts to
structural error because here, we have determined that Nesler is distinguishable and the
misconduct that did occur was not substantially likely to have biased any other juror.
9
Initially in his opening brief, Taylor frames his argument as claim of evidentiary
error consisting of the exclusion at trial of impeachment evidence that could have been
derived from A.D.’s employment records. Because the trial court’s pretrial ruling on the
motion to quash prevented Taylor from seeking to admit any of the subpoenaed records at
trial, we construe Taylor’s arguments as a claim that the error lay in the trial court’s
pretrial ruling.
16
to be untruthful; to determine the complaining witness’s reliability as a historian; the
complaining witness’s behavior while intoxicated, and to cross-examine and impeach the
complaining witness.” We conclude that the trial court did not abuse its discretion
because defense counsel failed to show good cause to enforce the subpoena.
“Although no substantial showing is required to issue a criminal subpoena duces
tecum . . . in order to defend such a subpoena against a motion to quash, the subpoenaing
party must at that point establish good cause to acquire the subpoenaed records. In other
words . . . . the defendant must show ‘some cause for discovery other than “a mere desire
for the benefit of all information.” ’ ” (Facebook, Inc. v. Superior Court of San Diego
County (2020) 10 Cal.5th 329, 344 (Facebook) ; see also § 1326.) The California
Supreme Court has described several factors relevant to a trial court’s assessment of good
cause. As is pertinent here, these factors include whether the defendant has shown “a
‘ “plausible justification” ’ . . . by presenting specific facts demonstrating that the
subpoenaed documents are admissible or might lead to admissible evidence” that will
reasonably assist in preparation of the defense, and whether production of the records
would “violate a third party’s ‘confidentiality or privacy rights.’ ” (Facebook, supra, at
pp. 345-347.) We review a ruling on a motion to quash for an abuse of discretion. (Id. at
p. 359.)
Here, the subpoenaed employment records manifestly implicated third-party
privacy rights the courts have long recognized as protected by constitution and statute.
(San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097 [personnel
records and employment history are constitutionally protected], overruled on other
grounds by Williams v. Superior Court (2017) 3 Cal.5th 531; see also Cal. Const., art. I,
§ 1; Code. Civ. Proc., § 1985.6; cf. Marken v. Santa Monica-Malibu Unified School Dist.
(2012) 202 Cal.App.4th 1250, 1261-1262 [protection against “invasion of personal
privacy” underlies exemption of personnel records from disclosure under public records
17
act].) The breadth of Taylor’s request reflects the scope of invasion contemplated:
“disciplinary investigation records, separation agreements, findings related to alcohol
consumption in the workplace, reports related to allegations of misconduct made by
[A.D.], reports related to false statements made by [A.D.], and documentation of [A.D.’s]
behavior while intoxicated in the workplace.”
Against A.D.’s privacy interest, Taylor through his counsel offered only
conclusory assertions of relevance to potential impeachment, devoid of “specific facts”
that would demonstrate that the subpoenaed documents “might lead to admissible
evidence that [would] reasonably ‘ “assist [Taylor] in preparing his defense.” ’ ”
(Facebook, supra, 10 Cal.5th at p. 345; Pitchess v. Superior Court (1974) 11 Cal.3d 531,
538 (Pitchess) [requiring adequate specificity to preclude possibility of a “ ‘fishing
expedition’ ”].) A.D.’s former employment ended in 2011, four years before the charged
offenses took place in 2015. (See, e.g., People v. Gonzalez (1967) 66 Cal.2d 482, 500
[trial court properly determined that third party’s reputation for violence seven years
before offenses “was too remote to have present probative value”].) Although defense
counsel offered a generic theory of relevance, he offered no specific facts as a basis for
his assertion that the employment records would produce impeachment material.10
As defense counsel did not offer specific facts to justify obtaining A.D.’s protected
employment records, we conclude that the trial court did not abuse its discretion when it
granted the People’s motion to quash. (Facebook, supra, 10 Cal.5th at p. 359.) And
10
Taylor on appeal relies on a further rationale proffered by defense counsel
during an in camera hearing which postdated and was unrelated to the trial court’s ruling
on the motion to quash Taylor’s subpoena for A.D.’s employment records. But at no
time after the ruling on the motion to quash did defense counsel renew his request to
obtain A.D.’s employment records. In our deferential review for abuse of discretion, we
consider only the arguments before the trial court when it was asked to exercise that
discretion.
18
because Taylor has not demonstrated that the trial court erred by granting the motion to
quash, we find no merit in Taylor’s derivative claim that denying him access to the
employment records violated his Sixth and Fourteenth Amendment rights to confront
witnesses and present a complete defense. (See People v. Hajek and Vo (2014) 58
Cal.4th 1144, 1233 [application of discovery statutes did not demonstrate violation of
right to present defense], abrogated on a different ground as stated in People v. Rangel
(2016) 62 Cal.4th 1192; see also People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103
[application of ordinary rules of evidence do not infringe on a defendant’s right to present
a defense].)
C. Review of A.D.’s Psychiatric Records
The month before trial, the trial court reviewed A.D.’s psychiatric records in
camera and denied without prejudice Taylor’s motion for their release. The trial court
stated: “The Court will continue to review and reflect upon the quality of this material as
the testimony unfolds throughout the course of the trial and will revisit the question if it
appears based on the testimony in the trial that the importance and materiality of the
records changes the balance with respect to the right to privacy and interest of the holder
privileges with respect to the documents.” Taylor did not thereafter renew his motion.
Taylor now argues that this court should independently review A.D.’s psychiatric
records. Because Taylor was not entitled to pretrial disclosure of A.D.’s psychiatric
records and did not ultimately request their disclosure at trial, we discern no legal basis
for our intrusion on A.D.’s privacy now.
Psychiatric records are generally protected from discovery by the psychotherapist-
patient privilege. (Evid. Code, § 1014.) Nevertheless, because a witness’s mental illness
or emotional instability can be relevant to credibility, a party may cross-examine the
witness as to whether the mental illness affects the witness’s ability to recall, perceive or
describe events. (People v. Gurule (2002) 28 Cal.4th 557, 592 (Gurule).) “When a
19
defendant proposes to impeach a critical prosecution witness with questions that call for
privileged information, the trial court may be called upon . . . to balance the defendant’s
need for cross-examination and the state policies the privilege is intended to serve.”
(People v. Hammon (1997) 15 Cal.4th 1117, 1127 (Hammon).) To determine whether a
defendant’s need for the information outweighs the witness’s interest in confidentiality, a
trial court may hold an in camera hearing to examine the privileged material. (See
§ 1326, subd. (c).) However, a defendant does not generally have a pretrial right to a
witness’s privileged psychiatric information. (Hammon, supra, at p. 1127; Gurule,
supra, 28 Cal.4th at p. 592.) “Before trial, the court typically will not have sufficient
information to conduct the inquiry [balancing defendant’s Sixth Amendment rights and
the witness’s rights]; hence, if pretrial disclosure is permitted, a serious risk arises that
privileged material will be disclosed unnecessarily.” (Hammon, supra, at p. 1127.)
Moreover, “[a] tentative pretrial ruling, made without fully knowing what the trial
evidence would show, will not preserve the issue for the appeal if the appellant could
have, but did not, renew the objection or offer of proof and press for a final ruling in the
changed context of the trial evidence itself.” (Holloway, supra, 33 Cal.4th at p. 133.)
Taylor acknowledges that he is not entitled to pretrial disclosure of privileged
records but argues that he is nonetheless entitled to an independent appellate review of
the sealed records. (Hammon, supra, 15 Cal.4th at p. 1127; Gurule, supra, 28 Cal.4th at
p. 592.) Taylor contends that by undertaking pretrial review of the records, the trial court
“implicitly acknowledged” that he may have been able to meet his burden to obtain
disclosure of the privileged material. Taylor’s argument inverts the customary appellate
presumption: we do not imply findings in contravention of the judgment but in its favor:
“ ‘ “[A]ll intendments and presumptions are indulged to support [a judgment] on matters
as to which the record is silent, and error must be affirmatively shown.” ’ ” (People v.
Giordano (2007) 42 Cal.4th 644, 666.) Moreover, assuming the trial court had in fact
20
been open to pretrial disclosure upon an appropriate showing, its willingness to entertain
the possibility conferred on Taylor no entitlement to that disclosure.
Because the trial court was explicit that its pretrial denial of disclosure was
without prejudice and that it was willing to revisit the propriety of disclosure when A.D.
testified, Taylor had a clear opportunity and obligation to renew his request for disclosure
in order to preserve the issue for appeal. As such, to the extent Taylor challenges the trial
court’s failure to disclose the documents at all, including during trial consistent with
Hammon, his failure to press for a final ruling on the matter has forfeited his appellate
claim here. (Holloway, supra, 33 Cal.4th at p. 133.)11 We therefore decline to conduct
an independent appellate review of the subpoenaed documents.12
11
Nor may we reject the possibility that defense counsel decided that renewing his
request at trial was unnecessary. As defense counsel argued during his closing, A.D.
admitted her struggles with alcohol and that she had experienced delusional thoughts, as
when she checked Taylor’s back for angel wings.
12
The sealed records reviewed by a trial court, like all exhibits, are part of the
normal record on appeal, although they are not transmitted to a reviewing court except
upon request. (Cal. Rules of Court, rules 8.320(e), 8.224.) Neither party requested
transmission of the sealed records, as provided by California Rules of Court, rule
8.224(a). After a “due and diligent” search, the clerk of the superior court reported to us
that the documents cannot be located. Because we have the authority to order
augmentation or correction of the record under California Rules of Court, rule
8.155(a)(1), the trial court’s loss of the subpoenaed documents does not factor in our
conclusion on the merits: were it necessary, we would direct the trial court to order anew
the (re)production of the documents or to otherwise provide a record of its review. We
remind the trial court that preserving the documents in accessible form or, at a minimum,
preserving a detailed record of its review, facilitates appellate review and is less
burdensome than correction of the record after the fact. (See People v. Mooc (2001) 26
Cal.4th 1216, 1225-1230 [trial court ruling on Pitchess motion should make record of
what documents it examined].)
21
D. Retroactivity of Senate Bill No. 567 and Assembly Bill No. 518
Both Senate Bill No. 567 and Assembly Bill No. 518 became effective
January 1, 2022, after Taylor was sentenced but while his appeal remained pending. In
supplemental briefing, the parties agree that remand for resentencing is required because
he is entitled to retroactive application of Senate Bill No. 567, which amended
section 1170, and Assembly Bill No. 518, which amended section 654. We concur.
Senate Bill No. 567 amended section 1170 to make the middle term the
presumptive sentence. (§ 1170, subd. (b)(1).) Moreover, section 1170, subdivision (b)(2)
states in pertinent part: “The court may impose a sentence exceeding the middle term
only when there are circumstances in aggravation of the crime that justify the imposition
of a term exceeding the middle term, and the facts underlying those circumstances have
been stipulated to by the defendant, or have been found true beyond a reasonable doubt at
a trial by the jury or by the judge in a court trial. Except where evidence supporting an
aggravating circumstance is admissible to prove or defend against the charged offense or
enhancement at trial, or it is otherwise authorized by law, upon request of a defendant,
trial on the circumstances in aggravation alleged in the indictment or information shall be
bifurcated from the trial of charges and enhancements. The jury shall not be informed of
the bifurcated allegations until there has been a conviction of a felony offense.”
As Taylor’s case was not yet final when these amendments to section 1170 took
effect, he is entitled to retroactive application of the amended version of the statute as it is
an ameliorative change in the law and nothing in Senate Bill No. 567 indicated that the
Legislature intended the change to apply prospectively. (People v. Flores (2022) 73
Cal.App.5th 1032, 1039; In re Estrada (1965) 63 Cal.2d 740.)
Here, the trial court imposed upper terms for counts 2 through 10. When selecting
the upper terms, the trial court expressly stated that it considered “the ongoing pattern of
violent conduct, the selection and vulnerability of the victim in this case, the callousness,
22
cruelness, extreme violence that was inflicted, the severity of the injuries imposed on
multiple occasions, the psychological and physical injuries, the lasting nature of those
injuries, the escalating criminal conduct, and the totality of the circumstances.” None of
these factors in aggravation were either stipulated to by Taylor or found true by a jury.
Thus, we must reverse the judgment and remand the matter for resentencing.
In light of our reversal, we do not need to address Taylor’s additional argument
that he is entitled to resentencing based on the ameliorative changes to the law
effectuated by Assembly Bill No. 518, which amended section 654. Because we are
remanding the matter for resentencing, the trial court may reconsider all of its prior
sentencing decisions as to all counts under the statutes that are now in effect, which
includes the newly amended version of section 654. (See People v. Buycks (2018) 5
Cal.5th 857, 893.)
III. DISPOSITION
The sentence as to counts 2 through 10 is vacated, the judgment is reversed, and
the matter is remanded for resentencing under Penal Code section 1170, subdivision (b),
as amended by Senate Bill No. 567. On remand, the trial court may reconsider all of its
sentencing decisions in light of the statutes that are now in effect, including the version of
Penal Code 654 as amended by Assembly Bill No. 518.
23
____________________________
LIE, J.
WE CONCUR:
____________________________
GREENWOOD, P.J.
_____________________________
GROVER, J.
People v. Taylor
H046288