People v. Talkington
| Decision Date | 16 December 2021 |
| Docket Number | D077674 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DAVID RICHARD TALKINGTON, Defendant and Appellant. |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No SCD280382, Frederic L. Link, Judge. Affirmed in part remanded for resentencing.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E. Winters Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent.
In response to a 911 call about an apparent domestic dispute police found defendant David Richard Talkington inside male victim Stacy C.'s bloody, 216-square-foot single-room-occupancy (SRO) apartment unit. Talkington had no visible injuries, but Stacy was bleeding profusely from his face, had a stab wound to his calf, and was in immense pain from two broken vertebrae. Both men initially told police Stacy had suffered a seizure, but Stacy later told hospital staff he had been jumped by strangers, before finally telling police Talkington had burst into his apartment and beaten and stabbed him. Stacy explained he initially lied because Talkington told him to do so or he would cut Stacy's head off.
Talkington was charged with attempted murder (Pen. Code, l §§ 664, 187, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), burglary of an inhabited dwelling (§§ 459, 460, subd. (a), 667.5, subd. (c)(2l)), making a criminal threat (§ 422), and attempting to dissuade a witness from reporting a crime . Most of the charges carried great bodily injury (§ 12022.7, subd. (a)) and deadly weapon (§ 12022, subd. (b)(1)) enhancement allegations. The jury found Talkington guilty of the assault, criminal threat, and dissuasion counts, and found the attendant enhancement allegations true. The jury acquitted him on the remaining counts. The trial court denied probation, and sentenced Talkington to six years in prison.
Talkington asserts three categories of error on appeal. First, he contends the trial court erred prejudicially by allowing witnesses to testify about hearsay statements Stacy (who ultimately testified at trial) made to them about what had happened. Second, he contends the prosecutor erred during closing argument by commenting indirectly on the fact Talkington did not testify at trial, and by improperly shifting the burden of proof to the defense. Finally, Talkington contends the court erred at sentencing by failing to consider his potential military service-related traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) in deciding whether to grant probation and whether to impose a lower term sentence. (§§ 1170.9, 1170.91; see People v. Panozo (2021) 59 Cal.App.5th 825, 831 (Panozo).)
As we will explain, we find no prejudicial evidentiary error and no prosecutorial error. However, because the record is ambiguous as to whether the trial court considered Talkington's potential TBI or PTSD in making its discretionary sentencing choices, we will remand for resentencing. In all other respects, we affirm the judgment.
Stacy and Talkington met eight or nine months before the incident when Stacy was staying at Father Joe's Village for a few nights and saw Talkington there. Stacy characterized their relationship as "acquaintance[s]."
About four months before the incident, Stacy moved into a 216-square-foot unit in an SRO apartment complex. At some point, Talkington moved into the same complex. Stacy testified he gave Talkington a TV and other personal property in exchange for Talkington helping Stacy move some other belongings into his apartment. After that, Talkington went to Stacy's unit only "about three times" to borrow change, a cigarette, or a drink.
Stacy's "pretty good friend[ ]" and neighbor, April testified she never saw Stacy and Talkington "hanging out together," and she did not believe they were friends. April was not friends with Talkington, and would only "see him in passing." She once overheard Talkington tell another neighbor he had been a Navy SEAL.
About three days before the incident, Stacy-an admitted alcoholic- sought medical assistance to attempt once again to get sober. He was prescribed Librium (a controlled substance used to mitigate seizures and withdrawal symptoms) on the condition that he have friends bring him the medication and soup three times per day. April and another friend and neighbor, Chantal, agreed to help Stacy.
April and Chantal described Stacy's condition as he was detoxing as "very weak," "very sick," and "shaky." Despite his medication, he was having seizures and trouble moving about. The day before the incident, he was able to walk, but the day of it, "all of a sudden he couldn't."
On the day of the incident, April checked on Stacy around 9:45 or 10:00 a.m. "He looked very sick" and "very pale"; "had been throwing up all over the bed"; "was wrapped up very tight like a cocoon in a blanket"; and needed April's help getting to the bathroom. April asked Stacy for his apartment key so she or Chantal could check on him later, but Stacy did not know where his key was so he told her he would leave the door unlocked.
Around 2:45 p.m., Stacy's neighbor Robert was walking down the apartment hallway when he "heard an argument" with "raised voices" inside Stacy's apartment. Robert thought one voice was male and the other female. He heard the male voice say in a serious and "[v]ery aggravated" tone, "I will kill you." Robert "stopped for a second sort of in disbelief of what [he] heard," and "then a few seconds later" heard the male voice say in a serious tone," 'I'm an ex Navy SEAL; I can and will kill you.'" The other voice in the room "sounded kind of muffled and quiet," so Robert "couldn't discern anything that was being said." Robert "was afraid someone was serious about killing someone else," so he reported the incident to the apartment manager and called 911. A recording of his 911 call was played at trial.
In response to Robert's call, San Diego Police Officers Garrett Kain and Paul Yi were dispatched to Stacy's apartment. Officer Kain activated his body-worn camera when he arrived at the complex, and portions of the footage were played at trial.
Officer Kain knocked on Stacy's door and identified himself as a police officer. Talkington responded from inside, "Yeah, he uh . . . sorry, he had a seizure . . . Yeah, he had a seizure . . . ." Talkington unlatched the deadbolt and opened the door, repeated that Stacy had had a seizure, and requested that the officers call an ambulance. Officer Kain saw that Stacy had blood on his face and body, lacerations on his face, a laceration or puncture wound on his calf, and a swollen eye. Stacy appeared to be in an "incredible" amount of pain. Talkington did not appear to have any injuries, but had blood on him. Stacy and Talkington both told Officer Kain that Stacy had had a seizure.
Officer Kain directed the men to step into the hallway while he quickly searched the apartment to make sure no one else was inside. The officer did not find anyone or any weapons inside, but he saw blood on various areas of the floor, including a large pool next to Stacy's bed and on his mattress. Based on the "alarming" amount of blood, Officer Kain became "concerned that this might not be just a seizure" and that he "wasn't being told the truth as to what happened." He "could tell something was wrong"-Stacy "look[ed] scared" and Talkington "seemed nervous."
Paramedics and more police officers responded to the scene. Officer Kain did not question Stacy further at the scene because he did not want to interfere with the paramedics. But the officer followed Stacy to the hospital "to see if [he] would tell... a different story if he was away from Mr. Talkington." Stacy "seemed less scared at the hospital," but "he was in incredible pain" that prevented him from answering some questions. Stacy did not tell Officer Kain or hospital personnel that he had been involved in a fight. When Officer Kain asked Stacy "specifically" if Talkington "did this to him," Stacy responded," 'You know I can't tell you that.'" When asked to explain why he could not discuss it, Stacy said," 'I can't talk to you about what happened. They will kill me.'" He "refused to elaborate on who did this to him."
Stacy received several stitches over his left eye and in his right calf, and he was diagnosed with two broken vertebrae. He also had cuts on his forehead and nose, and his left eye was swollen and bruised.
The day after the incident, Stacy began staying at his friend April's apartment so she could tend to him. He appeared to be in "[v]ery much" pain, and was "[v]ery, very scared." April testified Stacy
At some point the day after the incident, Stacy spoke to the apartment manager, Kierra G. Kierra had gone to Stacy's apartment when police responded to the incident, and she had seen Talkington "putting something underneath Stacy's head, and he was talking to him." She had seen Stacy and Talkington smoke cigarettes together in the apartment courtyard, and, despite "get[ting] into a little argument from time to time," she thought they were friends.
Kierra testified that the day after the incident, Stacy told her "he lied [the day before] about what happened and that he was terrified and didn't want to go back to his apartment." Stacy told her that ...
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