People v. AUSBIEPeople v. AUSBIE
DAWSON, J.
Shaani Aaisha Ausbie (appellant) was convicted of one count of mayhem (
Appellant was sentenced to a total determinate term of 10 years in state prison, consisting of the middle term of three years for the aggravated assault conviction, with two 3-year enhancement terms for personal infliction of great bodily injury and a one-year enhancement for the prior prison term. Sentences on the other counts were imposed and stayed. Various tests and fines were ordered, including restitution to be paid to Cynthia Robinson in the amount of $1,043.65 and restitution to be paid to Misty Garcia in an amount to be determined.
On appeal, appellant contends her convictions for battery with serious bodily injury and assault by means of force likely to produce great bodily injury must be reversed because they are lesser offenses necessarily included in the mayhem offense. Appellant also claims error in the jury instructions and the restitution order. Respondent agrees that the conviction for battery with serious bodily injury must be reversed, and we accept that concession and reverse the conviction on count 3. We
FACTS
Cynthia Robinson and her friend Misty Garcia went to the Elks Lodge in Kern County late one evening and saw appellant at the bar. There was bad blood between appellant and Robinson over appellant‘s boyfriend, Michael Whatley. Appellant and Robinson soon exchanged words, and words escalated to blows when appellant punched Robinson and she punched back. Appellant‘s sister, Aarica Kitchen, joined the fray, hitting and kicking Robinson.
Elks Lodge security officers stopped the fight and escorted the combatants outside, where they resumed their battle. Using a razor or box cutter later found in Kitchen‘s vehicle, appellant fought with Robinson until Robinson, bloody and weak, made her retreat. Meanwhile, Kitchen and Garcia did battle. Moments later, Robinson saw appellant run toward Garcia, hit her, and make slashing motions toward her.
Robinson was cut six or seven times during the altercation in the parking lot, and suffered injuries to her wrist, face, arms, head and chest. Her wounds required over 300 stitches and 30 to 40 staples to repair, and she was hospitalized for two days. Garcia was cut on her arm, face and breast, requiring 200 stitches to repair and resulting in scars.
Garcia and Robinson testified that they carried no weapon during the fight and that neither had threatened appellant or Kitchen.
DISCUSSION
1. Lesser included offenses of mayhem
Appellant was convicted of mayhem (count 1), assault by means of force likely to produce great bodily injury (count 2), and battery with serious bodily injury (count 3). She contends the convictions on counts 2 and 3 must be reversed because both assault by means of force likely to produce great bodily injury and battery with serious bodily injury are offenses necessarily included within the offense of mayhem.
Respondent concedes that battery with serious bodily injury is a necessarily included offense of mayhem and that the conviction for battery must be reversed. We accept that concession and will reverse count 3. The completed offense of mayhem, of necessity, includes the completed offense of battery with serious bodily injury. (People v. Ortega (1998) 19 Cal.4th 686, 692, 80 Cal.Rptr.2d 489, 968 P.2d 48 [an offense is necessarily included where greater offense cannot be committed without necessarily committing lesser offense]; People v. Moran (1970) 1 Cal.3d 755, 763, 83 Cal.Rptr. 411, 463 P.2d 763 [when jury expressly finds the defendant guilty of both greater and lesser offenses and evidence supports verdict as to greater offense, conviction of that offense is controlling, and conviction of lesser offense must be reversed].) We also agree with respondent, however, that assault by means of force likely to produce great bodily injury is not an offense necessarily included in the offense of mayhem.
We begin our analysis with
Appellant is correct, however, in noting that “multiple convictions may not be based on necessarily included offenses.” (People v. Pearson, supra, 42 Cal.3d at p. 355, 228 Cal.Rptr. 509, 721 P.2d 595.) “[A] defendant properly may be convicted of two offenses if neither offense is necessarily included in the other, even though under
Appellant relies on People v. DeAngelis (1979) 97 Cal.App.3d 837, 159 Cal.Rptr. 111 as being directly on point. A careful reading of that opinion, however, reveals that its holding is limited: “An assault is necessarily included in mayhem where the assault is a continuing event and the mayhem results during the course thereof. The lesser merges into the major.” (Id. at p. 841, 159 Cal.Rptr. 111.) Though the DeAngelis defendant had been charged with mayhem and with assault on the same victim by means of force likely to produce great bodily injury, the jury convicted DeAngelis only of mayhem and the lesser offense of simple assault. Thus, the court‘s holding that assault is a lesser offense subsumed in the offense of mayhem (see also People v. McKelvy (1987) 194 Cal.App.3d 694, 702, 239 Cal.Rptr. 782; People v. Krupa (1944) 64 Cal.App.2d 592, 597, 149 P.2d 416) does not also mean that assault by means of force likely to produce great bodily injury is so subsumed.2
Appellant also relies on People v. Moody (1943) 62 Cal.App.2d 18, 143 P.2d 978 as being directly on point. The question presented there, however, was not whether an aggravated assault was necessarily included within the offense of mayhem but, instead, whether the jury‘s conviction on an aggravated assault charge was necessarily inconsistent with the jury‘s acquittal on a charge of mayhem. While the Moody court did mention the subject of lesser included offenses in analyzing the answer to this question, it also mentioned “milder” and “junior” offenses as well as “the major crime” and “the more serious crime.” (Id. at p. 21, 143 P.2d 978.) The court simply did not address, much less decide, whether assault by means of force likely to produce great bodily injury is an offense necessarily included in the offense of mayhem. (See also People v. Kimmerle (1928) 90 Cal.App. 186, 189, 265 P. 525 [same].)
The modern rationale for the crime of mayhem in California is to protect the integrity of the victim‘s person from disfigurement. (People v. Keenan (1991) 227 Cal.App.3d 26, 34, 277 Cal. Rptr. 687; People v. Newble (1981) 120 Cal.App.3d 444, 451, 174 Cal.Rptr. 637.) The offense includes three elements: (1) an unlawful act by means of physical force; (2) resulting in an injury which “deprives a human being of a member of his body, or disables, disfigures or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip ...;” and (3) done “maliciously,” defined as “an unlawful intent to vex, annoy, or injure another person.” (
A careful examination of two California cases illustrates the point that it is the injury which controls, not the nature of the force applied. In People v. Page (1980) 104 Cal.App.3d 569, 163 Cal.Rptr. 839, the victim was tattooed while she was being held and threatened by the defendants. Although there were other acts of violence committed against the victim, the force necessary to inflict the disfiguring injury was holding the victim in place on a bed and applying the tattoo needles. In People v. Keenan, supra, 227 Cal.App.3d 26, 277 Cal.Rptr. 687, the defendant restrained the victim and used a cigarette to burn her breasts. Again, there were other acts of violence committed against the victim, including rape and sodomy, but the disfiguring injury was inflicted by use of force not necessarily likely to cause great bodily injury.3
Two opinions addressing not mayhem but felony battery also shed light on the issue presented here. In In re Ronnie N., supra, 174 Cal.App.3d 731, 220 Cal.Rptr. 365, the court held that aggravated assault in violation of
“`Section 245, subdivision (a), specifically addresses the conduct of a defendant by prohibiting an attack upon another person. In contrast, section 243 addresses the result of conduct rather than proscribing specific conduct. Thus, one may conceivably commit a felony battery without committing an aggravated assault. For example, a push that results in a fall and concomitant serious injury may not be sufficient deadly force to permit successful prosecution under section
245, subdivision (a). However, it is triable as felony battery.\‘” (In re Ronnie N., supra, 174 Cal.App.3d at p. 735, 220 Cal.Rptr. 365.)
In People v. Myers (1998) 61 Cal.App.4th 328, 71 Cal.Rptr.2d 518, the jury convicted the defendant of felony battery, but acquitted on a charge of aggravated assault, where the defendant pushed the victim, who slipped, fell, and was seriously injured. (See also People v. Mansfield, supra, 200 Cal.App.3d at p. 88, fn. 5, 245 Cal.Rptr. 800.)
Thus it requires no prescience to imagine a situation in which an assailant might maliciously—that is, with an intent to vex, annoy, or injure another—use force less than that likely to produce great bodily injury but nonetheless produce a disfiguring result. Though the disfiguring result would be considered great bodily injury (see People v. Brown (2001) 91 Cal.App.4th 256, 272, 109 Cal.Rptr.2d 879), the act that produced it would not constitute an assault by means of force likely to produce great bodily injury.
In reaching our conclusion that assault by means of force likely to produce great bodily injury is not a lesser offense necessarily included in the offense of mayhem, we have examined the offense of mayhem and its elements as defined by statute. Appellant contends we also must examine the accusatory pleading to determine whether she has been convicted of a greater and a necessarily included offense. In People v. Scheidt (1991) 231 Cal.App.3d 162, 165-170, 282 Cal.Rptr. 228, this court rejected the use of the accusatory pleading test to determine whether two very similar convictions could stand.4 Instead, we concluded, “only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding.” (Scheidt, at pp. 165-166, 282 Cal.Rptr. 228, italics added; see also In re Joseph G. (1995) 32 Cal.App.4th 1735, 1742, 38 Cal. Rptr.2d 902; People v. Watterson (1991) 234 Cal.App.3d 942, 947, fn. 15, 286 Cal. Rptr. 13.) The Supreme Court‘s opinion in People v. Montoya, supra, 33 Cal.4th at pages 1035-1036, 16 Cal.Rptr.3d 902, 94 P.3d 1098 acknowledges our holding in Scheidt, along with the opinions of other courts which have concluded that the accusatory pleading test does not apply to the question whether multiple convictions are proper, but instead only protects a defendant‘s due process right to adequate notice before being convicted of a lesser included offense. The court in Montoya stated that it need not decide whether these decisions were correct, because application of the accusatory pleading test did not assist the defendant under the facts of the case before it. (Ibid.; but see People v. Ortega, supra, 19 Cal.4th at p. 698, 80 Cal.Rptr.2d 489, 968 P.2d 48; People v. Sanchez (2001) 24 Cal.4th 983, 988, 103 Cal.Rptr.2d 698, 16 P.3d 118.)
Out of an abundance of caution, we therefore apply the accusatory pleading test as well to determine whether assault by means of force likely to produce great bodily injury is a lesser included offense of mayhem. In doing so, as instructed by the court in Montoya, we “consider only the pleading for the greater offense.” (People v. Montoya, supra, 33 Cal.4th at p. 1036, 16 Cal.Rptr.3d 902, 94 P.3d 1098.) Here, the language of the amended information charged in count 1 that:
“[Appellant], did willfully, unlawfully, and maliciously deprive Misty Garcia and Cynthia Robinson, a human being,
of a member of her body, to wit: multiple cuts, or disable, disfigure, or render said face useless, in violation of ... section 203 , a felony.”
There is no allegation that the disfiguring or disabling injury was accomplished by means of, or even that it was the result of, force likely to produce great bodily injury. Thus, under either test the aggravated assault is not necessarily included within the offense of mayhem.5
We therefore reverse the conviction on count 3, and affirm on counts 1 and 2.
2. CALJIC No. 17.03**
3. Section 12022.7, subdivision (a) enhancements
Appellant contends that the trial court erred in imposing two enhancements pursuant to
In enacting
“(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. [¶] ... [¶]
“(h) The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense.”
Appellant contends the language of
Contrary to appellant‘s argument, the statutory language does not limit the number of
Our construction of
Further, had the Legislature intended to limit the number of
Consequently, although appellant was charged with only one offense, relating to two victims, she may nonetheless receive increased punishment for each of the victims injured. (Cf. People v. Arndt, supra, 76 Cal.App.4th at pp. 396-397, 90 Cal. Rptr.2d 415 [
4.-5.***
DISPOSITION
The abstract of judgment incorrectly identifies the conviction offense on count 2 as assault with a deadly weapon. The trial court is directed to correct this error. Appellant‘s conviction for battery causing serious bodily injury is reversed. The trial court is directed to modify the abstract of judgment accordingly, and also to modify the restitution order to provide expressly
WE CONCUR: HARRIS, Acting P.J., and GOMES, J.