Lead Opinion
Dеfendant and appellant Dale J. Jung appeals from a judgment following two jury trials. In the first jury trial, defendant Jung was convicted of kidnapping (Pen. Code, § 207, subd. (a))
Defendant and appellant Thi Van Nguyen appeals from a judgment following a jury trial. He was tried with defendant Jung in defendant Jung’s second jury trial and was convicted of kidnapping, mayhem, and torture and a great bodily injury allegation was found to be true. He was sentenced to life in prison. He contends the evidence was insufficient to support his conviction for torture; the trial court erred when it denied his request for a mistrial; and the trial court erred when it denied his requests for a continuance and tо reopen, and struck the testimony of a witness.
The prosecution raises issues concerning the restitution fines.
In the published portion of this opinion, we address the sufficiency of the evidence as to defendants’ torture convictions. We conclude substantial evidence supports the finding defendants intended to cause the victim cruel or extreme pain and suffering. In the unpublished portion of the opinion, we address the parties’ remaining contentions. We modify the restitution fines and affirm.
Facts
Fifteen-year-old Donald Hyon was a member of an Asian street gang called Jef-Rox. Defendant Jung was а member of another Asian street gang called Rebel Boys, and defendant Nguyen was a member of a third Asian street gang called Pinoy Real. Rebel Boys and Pinoy Real were allies, and rivals of Jef-Rox. In the evening hours of November 4, 1994, an altercation occurred between members of Jef-Rox and members of Rebel Boys and Pinoy Real. Hyon chased and beat defendant Nguyen. A short time later, defendants and others trapped Hyon in the garage of an apartment building. They beat and kicked Hyon, grabbed him by his hair and forced him to disrobe. They pulled the naked and struggling Hyon from the garage
The five to eight occupants of the room were laughing and jeering. They told Hyon he was going to die. They shoved Hyon onto a couch. They used his body as an ashtray, burning him with cigarettes on both shoulders three to four times. They beat him with their fists and kicked him. They repeatedly hit him on the head and in the face and slapped him. They laid him on the floor and five or six of them jumped on him from the couch. They forced him to drink urine. They bit him on his upper thighs and scratched him. They gave him hickeys on his neck. They put Ben-Gay on his penis, which hurt. They tattooed his back, legs, and arms extensively with a tattoo machine. The needle was painful. After tattooing him, they poured rubbing alcohol over his fresh wounds, which stung. They wrote on his body with magic markers. They shaved the hair on his head. They hit him with hard objects on his backside and legs. They whipped him with a cloth. They placеd a hard object between his buttocks. They rubbed and played with his penis and attempted to have him ejaculate. They photographed him and forced him to dance and pose. They dressed him in girl’s clothing. They continued to beat him. Hyon curled into a protective fetal position, yet they continued to kick him. On two occasions, defendant Jung told the others to stop hitting Hyon, but defendant Jung made the statements in a sarcastic manner and the beatings did not stop. The attacks continued for several hours, after which they put Hyon in a van, drove him to another location, and released him, still bound, blindfolded, and dressed in girl’s clothing. They threatened to kill him and his family and bum his house down if he went to the police. The events of November 4, 1994, had been very scary. Hyon had been in fear.
The incident was reported to the police. Hyon was physically shaken up and bore lumps, tattoos, and hickeys on his body. Because of threats made by defendants and his embarrassment and shame, Hyon downplayed what had happened to him when he spoke to the police. He was uncooperative, reluctant, and resistant. He felt as if his bones were broken, but told the police he felt okаy. Hyon refused the police’s offer of medical treatment, but saw his pediatrician the next day. At the time of trial, Hyon still bore the tattoos. The photographs taken of Hyon by his attackers at the time of the incident were found in a photo album in defendant Jung’s bedroom. The photographs in the album had been captioned. The captions included, “We Offer Only One Type of Treatment,” “Cruelty to Animals Leads to Worse,” “Battered, Raped, and Veiled,” and “Weakness.” The photographs reveal a huddled, crying, cringing, naked, blindfolded Hyon.
The defense was misidentification as to defendant Nguyen. As tо defendant Jung, the defense was that he had not participated in the torture.
Discussion
I. Sufficiency of the Evidence — Torture
Defendants contend the evidence is insufficient to support a finding they intended to cause Hyon cmel or extreme pain and suffering. We disagree.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980)
Section 206 provides: “Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. flQ The crime of torture does not require any proof that the victim suffered pain.” Defendants do not challenge the sufficiency of the evidence as to the infliction of great bodily injury, nor do they challenge the sufficiency of the evidence as to the purpose of revenge, Their sole sufficiency of the evidence challenge relates to the intent to cause cruel or extreme pain and suffering.
“In section 206, the word ‘cruel’ modifies the phrase ‘pain and suffering.’ In at least two other cases, courts have held that ‘cruel pain’ is the equivalent to ‘extreme’ or ‘severe’ pain. [Citations.] This definition comports with the common dictionary definition of ‘cruel’ [citation], and, in our view, is a reasonable and practical interpretation of that phrase [citation].” (People v. Aguilar (1997)
Defendants argue the evidence establishes an intent to humiliate, but not an intent to cause severe pain and suffering. Although some of the abuse inflicted on Hyon appears to have been intended to humiliate him, such as dressing him in women’s clothing, forcing him to drink urine, and forcing him to dance and pose for photographs, the evidence also supports an intent to cause severe pain and suffering. Indeed, there can be no other explanation for the cigarette bums, the application of Ben-Gay to Hyon’s penis, the pouring of rubbing alcohol over Hyon’s fresh wounds, the beating, the biting, and the kicking. That defendants may have intended to humiliate Hyon, as well as cause him severe pain and suffering, doеs not defeat their convictions for torture. (Cf. People v. Healy (1993)
Defendants argue the nature of the acts inflicted on Hyon is not comparable to the nature of the acts involved in other reported torture cases. For example, in People v. Barrera (1993)
We agree Hyon apparently suffered no broken bones or injuries to vital organs. He was, however, greatly disfigured and scarred, not to mention severely emotionally traumatized. At the second trial in 1997, he was still unable to testify to the events in 1994 without a loss of composure. That Hyon suffered pain from the cigarette bums, the tattooing, the Ben-Gay and rubbing alcohol applications, the beating, the kicking, and the biting is self-evident, although the severity of the pain was not expressly acknowledged by Hyon. In any event, defendants wrongfully placе the emphasis on the injuries or pain suffered by the victim. (People v. Davenport, supra,
The intent of the perpetrator can be established not only by the circumstances of the offense, but also from other circumstantial evidence. (People v. Raley (1992)
We conclude the evidence is sufficient.
II.-V.
Disposition
The judgments of conviction are modified to show a parole revocation restitution fine of $10,000, suspended, and the clerk of the superior court is directed to correct the abstract of judgment to reflect both restitution fines and to forward the corrected abstract of judgment to the Department of Corrections. The judgments are affirmed in all other respects.
Turner, P. J., concurred.
Notes
All further statutory references are to the Penal Code, unless otherwise noted.
We have taken judicial notice of the trial court exhibits.
We note that the jury was instructed as to a lesser offense of assault with a deadly weapon or with force likely to produce great bodily injury.
First degree murder by torture cases are inapposite because the torture must have caused the death. (§ 189; People v. Proctor (1992)
See footnote, ante, page 1036.
Dissenting Opinion
— I respectfully dissent.
I do not believe that the record contains substantial evidence that appellants intended to cause Hyon cruel or extremе pain and suffering, a necessary element of the crime of torture, or that the conduct for which appellants were convicted constitutes torture within the meaning of Penal Code section 206. Consequently, I would reduce their torture convictions to the lesser included offense of battery.
As the majority notes, torture is a newly codified crime in California, created on June 5, 1990, when the California electorate passed Proposition 115 in response to the facts in People v. Singleton (1980)
In People v. Barrera (1993)
The court in People v. Barrera concluded that “ ‘Torture’ has a longstanding, judicially recognized meaning.” (
“ ‘In determining whether the murder was perpetrated by means of torture the solution must rest upon whether the assailant’s intent was to cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity. The test cannot be whether the victim merely suffered severе pain since presumably in most murders severe pain precedes death.’ (People v. Tubby (1949)
In order to secure a conviction for the offense of torture, the People are required to prove that the defendant intended to cause cruel or extreme pain and suffering. “A defendant’s state of mind must, in the absence of the defendant’s own statements, be established by the circumstances surrounding the commission of thе offense. . . . The condition of the victim’s body may establish circumstantial evidence of the requisite intent. ‘In determining whether a murder was committed with that intent [to torture], the jury may of course consider all the circumstances surrounding the killing. Among those circumstances, in many cases, is the severity of the victim’s wounds.’ ” (People v. Mincey (1992)
Thus, for example, in People v. Healy (1993)
In affirming a conviction for first degree torture murder in People v. Mincey, supra, 2 Cal.4th 408, the Supreme Court ruled that the element of intent to cause cruel pain and suffering can be inferred solely from the condition of the victim’s body provided that the wounds are sufficiently egregious to support the inference. The evidence there showed that the defendant beat the 5-year-old victim repeatedly over a pеriod of 24 to 48 hours, resulting in hundreds of injuries, including stoppage of the intestinal tract and swelling of the brain. (Id. at p. 428.) While many of the injuries could have been caused by a hand hitting the victim, certain of them could only have been caused by a hard object, such as a board recovered from the scene. The doctor who conducted the autopsy testified that the victim experienced prolonged pain before his death. (Ibid.)
In People v. Raley (1992)
In People v. Jenkins (1994)
In People v. Proctor (1992)
In the each of the foregoing cases, the defendant’s intention to inflict extreme or cruel pain could be inferred from the circumstances of the case, including the nature, extent and severity of the wounds suffered by the victim. And in each case, the victim, if he or she survived the assault at all, suffered substantial, debilitating injuries: broken bones, punctured internal organs, multiple stab wounds and gunshot wounds.
As respondent notes, there is no requirement that the victim suffer pain in order for the defendant to be convicted of torture. (Pen. Code, § 206.) It is the People’s burden, however, to establish that the defendant intended to inflict cruel and extreme pain. Here, the victim testified to the pain he suffered at the hands of his assailants:
Members of appellants’ group did hit, kick, scratch and bite Hyon, bum him severаl times with a cigarette, and tattoo him during his captivity. The nature and severity of these actions, however, were not described at trial. The jury was not informed, for example, whether the bums on Hyon’s shoulders caused blisters, or whether the bites and scratches broke his skin. These acts certainly constitute battery and mayhem. And while the injuries qualify as great bodily injury within the meaning of section 12022.7 (see People v. Escobar (1992)
The majority describe the victim as “greatly disfigured and scarred.” I concur that scarring and disfigurement would in many cases constitutе strong circumstantial evidence of an intent to inflict severe pain and suffering. (See, e.g., People v. Singleton, supra,
As the facts of the cases detailed above make clear, appellants’ conduct simply did not come within the category of conduct, perhaps best described as inspired by pure evil, which the courts have determined to be torture, and which the electorate determined requirеd a minimum life sentence. Penal Code section 206 was enacted by the People of the State of California in response to the particularly heinous facts of People v. Singleton, supra: The defendant kidnapped and sexually abused his victim, then chopped off her hands and dumped her in a ditch in a remote location. Miraculously, the victim survived. (People v. Singleton, supra, 112 Cal.App.3d at pp. 420-422.) The defendant was charged with and convicted of attempted murder, mayhem, kidnapping, and multiple sex crimes. He was sentenced to a total of fourteen years, four months in prison, and was paroled after having served just seven years in prison. (See Review of Selected California Legislation— Addendum — Proposition 115: The Crime Victims Justice Reform Act, supra, 22 Pacific L.J. 1010, 1013, fn. 23.) The new crime of torture was included as part of Proposition 115 “to insure that crimes such as Singleton’s receive a minimum punishment of life imprisonment.” (Sen. Com. on Judiciary, As-sem. Com. on Public Safety, Joint Hearing on Crime Victims Justice Reform Act (1990) pt. 3, at p. 005.) Or, as stated in the Argument in Favor of Proposition 115 which appeared on the ballot, the proposition’s “ ‘Singleton Torture
Penal Code section 206 was not enacted to redefine the legal definition of torture; that definition has remained constant throughout the years. (People v. Barrera, supra,
In short, the evidence estаblishes that appellant committed battery and mayhem, and caused Hyon to suffer physical pain and acute emotional distress. It is not my intention to minimize either appellants’ conduct or the victim’s anguish. However, the evidence also establishes that appellants had an uninterrupted opportunity to inflict severe and prolonged physical pain on Hyon, but did not do so. Appellants did not testify to their intent to inflict cruel or extreme pain, and Hyon testified only that the assault on him “hurt,” without any indication that the physical contact between him and his assailants was more than superficial and fleeting. The police officer who examined Hyon immediately after the assault testified that he observed no significant injuries, and that he concluded that Hyon required no emergency medical attention. Hyon himself told the officer that he felt fine. A reasonable juror could not infer from these facts that appellants intended to inflict cruel or extreme pain.
The dictionary definition of “hazing” is “to initiate or discipline (fellow students) by forcing to do ridiculous, humiliating, or painful things.” (See Webster’s New World Diet. (3d college ed. 1991) p. 620.) This precisely describes what appellants and thеir cohorts did to Hyon, a rival gang member rather than a fellow student. This conduct was patently offensive, and constitutes battery, as well as the additional crimes of kidnapping and mayhem, of which appellants were convicted.
On May 20, 1999, and May 25, 1999, the opinion was modified to read as printed above. Appellants’ petitions for review by the Supreme Court were dеnied August 11, 1999.
Because Hyon was blindfolded, he could not identify who among appellants’ group actually assaulted him.
It is worth noting that the first jury to hear the evidence against appellant Jung, and which convicted him of mayhem and kidnapping, could not reach a verdict on the torture count. Moreover, the trial court, after hearing the evidence presented against appellant Jung on the torture count, was inclined to dismiss that count pursuant to Penal Code section 1385, but denied the motion to dismiss since Jung’s retrial could simply be consolidated with appellant Nguyen’s trial on the same count.