*1 Dist., Div. One. Fourth Apr. 2004.] D040874. [No. PEOPLE,
THE Plaintiff Respondent, PRE, Defendant
REYNANTE Appellant. FOR PARTIAL PUBLICATION*] [CERTIFIED * 976.1, Court, publication opinion is certified rule this to California Rules Pursuant II, I, m and V. exception parts with the *3 Counsel
Law Offices of Scott M. M. Schlegel Scott for Defendant and Schlegel Appellant. *4 General,
Bill Anderson, Lockyer, Robert R. Attorney Chief Assistant Attorney General, Schons, General, W. Gary Assistant Attorney DaSilva and Tony Stilwell, General, D. Laura for Plaintiff and Deputy Attorneys Respondent. Opinion Reynante Pre
McCONNELL, P. entered after a appeals judgment jury J. Code,1 convicted him of voluntary (Pen. attempted manslaughter §§ (a)), (§ 203), subd. (§ simple mayhem 206), torture first degree robbery (§ 211) 459). and residential (§ He burglary contends that the trial court erred (1) by admitting evidence his to the statements which he contends police, were taken in violation his constitutional to rights; instruct failing jury regarding battery in serious he resulting bodily which contends injury, was a lesser included offense of torture and the aggravated mayhem him; to a charges against from the by responding question directing to review the He jurors instructions. also contends that existing (4) there was insufficient evidence to his conviction for torture and (5) the abstract of judgment indicates count erroneously charged when it in was a mayhem fact We find merit to charge. Pre’s last contention and order the abstract of to be corrected. In all other judgment we affirm the respects, judgment.
FACTUAL AND PROCEDURAL BACKGROUND 26, 1999, On March G. to Rose returned her in a apartment gated floor, after As she exited on community the elevator her grocery shopping. statutory All to the Code specified. references are Penal unless otherwise Pre, the elevator. Shesmiled standing not recognize, she saw whom she did door, took two steps at to her unlocked him walked nearby apartment, counter, the door and waited for inside, set kitchen groceries down her “click,” it was closed. to indicating click, and saw Pre around opening did hear the she turned she
When it In broken further. to the door to block him from opening the door. She went the door asked, open out While keeping Pre “How you get garage?” English, inches, answered, Pre out the garage.” “You drive about 12 Rose only to Rose told him go how out the gate. his asked get repeated question but had his foot inside close the door Pre rental office began into her way the door. He forced his closing apartment. door and resisted her balance, backward, her as he entered. losing She stumbled balance, which groin, her Rose kicked Pre in the soon as she regained As while was “a scuffle” slowed him Rose testified there momentarily. major to choke her and she by trying were both He standing. began responded they floor, landing or fell to the to choke Pre or his She then eyes. gouge tripped one to choke her with hand on her back with Pre over her. He continued his other out a with while he reached behind his back and weapon pulled (a a car club wheel steering hand. The was later determined be weapon device). locking the car club if she had put
Pre would have hit Rose’s left temple the car it. Pre wrested grab her left hand to deflect blow and try up motion; so, car he did club club from Rose it in a backward by pulling *5 of came and it flew off. part apart that could they her down the hall so
Pre Rose’s hands and grabbed dragged and Pre kicking not be seen a Rose was nearby struggling. window. through regained When Rose continued to choke Rose until she lost consciousness. area, consciousness, her cradled in his Pre had her shoulders and head lap her ear. Rose began struggling again head elevated and he was biting right out Rose was again. to throat until she passed but Pre her applied pressure her, somebody choke afraid Pre was would tilling believing “Why anybody out twice it if were not to till someone?” consciousness, and she the Pre had left apartment
When Rose regained was her She later discovered purse crawled to the and called 911. phone missing. attack, an to her right testified she suffered a result of Pre’s Rose
As a on bite mark a caused dental fracture of her cheek which problems, temple, hand, side, organ, to an internal her left an injury her fractured ribs on right her and a bite to right that was later finger amputated, fracture of her left little ear, which over 100 stitches. The required exhibits of Rose’s photographic breasts, injuries show a five additionally series of round bruises between her on and bruising her back what to on be bite mark her back. appears 1, 1999, On Pre to April (the fled the and of his birth Philippines country where he had lived before to the United coming 1994) States in because he was afraid he be might for the attack. The next prosecuted day, police received an anonymous that led their of tip discovery evidence implicating Pre as Rose’s assailant. attack, the
Several after years for Pre’s police extradition arranged 18, San Diego for he arrived prosecution; late evening January time, 2002. At conducted a police interview with him. At videotaped interview, his Miranda rights; the outset of the the officers advised Pre Pre told the although officers that he did not understand their initially advisements that his statements could be used him and that he was against entitled attorney, an further Pre presence upon indicated explanation, that he understood those and was nonetheless rights willing to talk to the Thereafter, officers about the incident. he told the officers he had taken on the date drugs attack did not remember much of what he happened, although recalled going the victim apartment, hurting by instrument, floor, her with hitting her until fell to the bar-type choking she kicked her and getting taking her purse.
In the district filed an April attorney information Pre with charging murder, first attempted premeditated aggravated mayhem, degree trial, residential At robbery burglary. outset Pre moved suppress the evidence of his statements to the that his waiver police, arguing because knowing intelligent his and the primary language Tagalog of Miranda advised him his police rights without an English interpreter Miranda (See Arizona present. U.S. L.Ed.2d S.Ct. After OhioOp.2d reviewing videotape interview, the court found that Pre he although indicated that did initially him, understand certain being he did understand those rights explained after the officers rights clarification. Based on these provided findings, *6 court found that Pre and waived his after knowingly intelligently rights being admonished and it denied his motion. properly suppression trial, At the prosecution introduced evidence of the facts the surrounding attack, evidence, as set forth above. Pre did not but present any argued no there was evidence of or closing deliberation or of the premeditation intent element of of the specific him. The convicted any charges against (as Pre of a manslaughter lesser included offense of attempted voluntary murder), (as a lesser included offense of attempted simple mayhem aggra- vated first and also mayhem), degree residential It robbery burglary. in connection dangerous a or deadly weapon used found that Pre personally (on to a term Pre life The court sentenced charges. with each of and (on the counts count) and remaining four months years torture plus $10,000 and a restitution fine victim and to enhancements) ordered him pay to in an amount be determined. restitution
DISCUSSION I-IIT* IV Sufficiency Evidence—Torture is his torture conviction. Pre contends the evidence insufficient an evidence to support he contends there was insufficient Specifically, or that he inflicted he to inflict severe and cruel pain inference intended pain a Pre or for sadistic revenge, points purpose purpose. persuasion did he an device or knife inflict the injuries; the fact did not use electrical victim; and did inflict prolonged pain to humiliate attempt rape intent any brief. He “evidence of since the entire attack relatively argues and record” cruel and extreme absent from the court cause entirely occurred. only battery is defined section 206. Section 206 provides: The crime of torture by who, with the intent to cause cruel or extreme pain “Every person extortion, or for sadistic any for the revenge, persuasion, suffering purpose Section 12022.7 inflicts defined in great bodily injury upon purpose, another, crime of does not of torture. The torture is guilty person [][] states, “As statute that the victim suffered any require proof pain.” (1) great injury upon person elements: inflicted bodily has two person another, so with (2) specific did inflicting person of revenge, for the suffering cause cruel and extreme v. Baker extortion, (People or for sadistic any purpose.” persuasion, 313].) Cal.App.4th Cal.Rptr.2d [120 the voters The contained in section 206 was adopted torture offense and callous violent extremely law gap existing dealing “fill[] 1555, 1573 Barrera conduct.” criminal 206 focuses on mental as defined in section Cal.Rptr.2d “[T]orture ante, footnote, *7 page *See 413.
420
state and not the actual v. perpetrator inflicted.” Hale pain (People 94, (1999) 904].) 75 108 Cal.App.4th Cal.Rptr.2d [88 Section 206 not does require permanent, disabling, disfiguring injuries; 206 only ‘great bodily defined in requires “[s]ection ‘Abrasions, Section 12022.7’ .... lacerations and can constitute bruising ” Hale, 108; great bodily v. injury.’ (People supra, 75 at Cal.App.4th p. 1036, (1999) v. People Jung 5].) 71 1042 Cal.App.4th Cal.Rptr.2d [84 Further, section 206 that offense expressly provides “does require any (§ 206.) victim suffered The proof of an pain.” statutory requirement to inflict intent “cruel” has been pain suffering interpreted require the defendant had an intent inflict extreme or severe (People v. pain. 1196, Aguilar (1997) 619].) 58 1202 As Cal.App.4th Cal.Rptr.2d [68 statute, used in the “sadistic the common purpose” encompasses meaning, “ i.e., ‘the infliction another for the pain person experiencing ” (Id. 1203.) at pleasure.’ p. The intent for a conviction of the offense contained required section 206 differs from the intent for murder required since the by torture offense in section 206 does not that the defendant act with require or deliberation or that the premeditation defendant have an intent to inflict Hale, 94, 107; v. prolonged pain. (People supra, 75 v. People Cal.App.4th Aguilar, 58 supra, at 1204 does p. 189 not itself Cal.App.4th [“[S]ection define crime of murder torture” whereas by the entire text of “virtually 206 section defines the crime of does not statutory language Thus, the intent to inflict require of the (4) prolonged pain.”].) brevity not, itself, attack does in and of a conclusion the defendant must be compel Hale, (See of torture. acquitted v. at People 107-108 defend pp. [rejecting ant’s that the argument attack his an “brevity harboring preclude[d] torture”].) intent to
Intent is of direct rarely must be susceptible proof usually inferred from the facts and circumstances the offense. surrounding (People v. 1236, 40]; Kwok 63 1245 Cal. 2d People v. Cal.App.4th Rptr. [75 (1978) 85 452 Walls Intent cause Cal.App.3d Cal.Rptr. [149 cruel be or extreme can established circumstances the offense and other circumstantial evidence. v. at Jung, supra, Cal.App.4th 1043; Hale, 106.) v. at p. supra, p. of a
“[S]everity victim’s wounds determinative of intent necessarily to torture” since be a result of an may wounds inflicted as explosion “[s]evere ” of violence or an ‘act of animal rather an than fury’ [citations] extortion, inflict or other sadistic revenge, persuasion, purpose. Cal.4th P.2d (People Mincey Cal.Rptr.2d
421 247, 268 388]; (1985) Cal.Rptr. also 41 Cal.3d see v. People Davenport [221 794, 861], had “reversed convictions that the Court noting 710 P.2d Supreme of the the extreme a in of theory gruesomeness based on torture-murder spite ‘an the from killing resulted explosion the evidence showed crime where were when inhibitions ‘an act animal fury of violence’ or of produced follow, however, the that because ”) does not alcohol.’ “It by removed the of not determinative necessarily of the victim’s wounds is severity wounds cannot the nature of the victim’s defendant’s intent of mind. A defendant’s law be of intent. Intent is state matter of probative statements, must, be the of the defendant’s own of mind absence state of the offense. the commission the circumstances surrounding established circumstantial the establish body may The condition of victim’s [Citation.] 433.) at intent.” v. (People Mincey, p. evidence of the requisite “ the sufficiency court in reviewing ‘The role an appellate record in the light is must “review the whole evidence limited. The court it discloses to the below to determine whether most favorable judgment reasonable, credible, is, and of evidence which substantial evidence—that could find the defendant that a reasonable trier of fact solid value—such . . . But it is the jury, a reasonable doubt.” guilty beyond [Citations.] [f] court, be defendant’s guilt beyond which must convinced appellate Therefore, an court not substi- may a reasonable doubt. appellate [Citation.] ” (1998) v. 62 that of the tute its judgment jury.’ (People Sanchez 4 460, (1993) v. 782], People Ceja 468 Cal.Rptr.2d quoting Cal.App.4th [72 1134, 375, 55].) P.2d Cal.4th 1138-1139 847 Cal.Rptr.2d [17 “ ‘ every of the the existence of We support judgment “presume ’ ” deduce evidence.” (People fact the trier could from the reasonably 826, 463, re 119]; P.2d In (1995) 10 Cal.4th 509 896 Davis Cal.Rptr.2d [41 805, 701, 941 P.2d Manuel G. 16 Cal.4th 822 Cal.Rptr.2d [66 evidence, evidence, resolve conflicts in reweigh We do (1993) 6 Cal.4th witnesses. v. Ochoa reevaluate credibility 23, 103]; v. Green 864 P.2d Cal.Rptr.2d [26 913].) “Before judgment Cal.Rptr.2d Cal.App.4th [59 of the evidence to can be set aside for insufficiency support conviction verdict, no whatever hypothesis trier of fact’s it must clearly appear upon (1993) 19 v. Rehmeyer it.” (People is there sufficient evidence are 321].) Convictions seldom Cal.Rptr.2d of the evidence. based on insufficiency reversed statements other case, Pre making any did not remember In this victim area, or the gated how to exit the garage initial about than his questions gain his intent to perhaps that do little to reveal Pre’s except questions he talked door while her having keep open to Rose’s entry apartment by with her. He had no her. preexisting relationship During initial *9 while Pre and struggle Rose were and he when to her standing hit attempted hall, car club and later he when her a down reasonable dragged could infer a jury variety different intents. The General Attorney argues could find Pre had jury an intent to inflict in severe retaliation for Rose’s pain his kicking groin. Alternatively, evidence could inferences that Pre was to subdue attempting Rose as of an to rob her or that he part believed he needed to defend himself from Rose was who to hurt attempting conduct, him. Given Pre’s subsequent reasonable also could have jury inferred that Pre’s intent from the moment he entered the was to apartment inflict severe on an pain unknown woman for own his sense of warped sadistic Pre could had pleasure. have the initial multiple objectives during confrontation and struggle. attack,
While various intents could be ascribed to Pre’s initial entry he unconsciousness, once had subdued Rose by choking her into a reasonable could have concluded that jury his use force Rose was subsequent against not to a need to subdue Rose pursuant as of a belief for part in need self-defense or to a A pursuant robbery. reasonable could have concluded jury intent; Pre had neither if Pre’s intent was or self-defense while robbery, Rose he unconscious would have taken her and left or bound her while purse Instead, he ransacked the Pre did neither. while apartment. Rose was uncon- scious, he changed his cradled her head and shoulders his position, lap, ear, to bite her He proceeded ear. did not nibble her a sensitive merely body but so bit it that he part, severely bit her ear. The he nearly through conduct, inflicted over 100 stitches This was bizarre not required repair. necessitated to rob her or belief in A by any attempt self-defense. reasonable inference is that Pre bit ear inflict her to an intent to extreme on pursuant pain his victim for his own sadistic pleasure.
Moreover, consciousness, once Rose Pre choked regained her until again Further, she out. Rose suffered other that she not passed injuries did describe as the initial occurring during struggle, what be a bite including appears mark her back. A reasonable could have jury concluded these were injuries unconscious, is, inflicted when Rose was during when Pre could period left have if his intent had been to take apartment only her or purse defend himself her attack and that against these were inflicted for the injuries severe or inflicting Pre’s sadistic revenge pleasure.
Pre his torture argues conviction lacks sufficient evidence because he did not resort did sexual using weapons, engage any assault acts, and humiliating he “had an although uninterrupted opportunity inflict severe and intentionally on . . . . . Rose . prolonged physical pain [he] did not do so.” Second, a (a club). reasonable use a car we note Pre did weapon
Initially, he had created he of the advantage opportunity conclude did take could unconscious, he victim; into he choked the victim on the after to inflict Third, to Pre the extent inflict additional injuries. took the opportunity did not constitute that Pre’s conduct dissent finds argues cases, (1980) 112 v. Singleton Cal.App.3d because other such or because Pre did 333], extreme conduct involved more Cal.Rptr. at odds with not only we This disagree. position inflict prolonged pain, statute, but also with the torture decisions of Court of Appeal interpreting of our Court. Supreme statements *10 Barrera, v. 14 in People supra, Cal.App.4th
The Court Appeal 1573, 1555, offense in section the the torture argument rejected expressly with conduct similar to the intended offenses only encompass 206 was found little decisions have similarly case. Other Court of Singleton Appeal faced with assessing to the of other torture cases when in facts utility looking Baker, (See of the v. 98 sufficiency People supra, Cal.App.4th evidence. torture that “the cases in which at 1224-1225 argument pp. [rejecting demonstrating have been affirmed evidence ‘uniquely convictions involve[d] case]; in defendant’s v. People vicious behavior’ or ‘evilness’ not present” Hale, 94, that the evidence argument 75 107 [rejecting supra, Cal.App.4th acts so as those was insufficient because the defendant’s were not egregious 1036, cases]; v. People Jung, supra, in other was because other victims that evidence insufficient argument [rejecting more, have suffered other victims of torture may suffered explaining, “[t]hat no of the more than the victim this case sheds light sufficiency suffer intent to cause severe evidence defendants’ pain victim] [the cases of little value the facts in other is ing”].) agree comparison We Thus, the fact of the evidence in a case. in assessing sufficiency particular (such as Pre did not severe or additional injuries raping inflict more victim) acts does not humiliating or did not the victim to require engage in this case. undermine conclusion the evidence was sufficient has of the statute ex The dissent asserts “application [torture] accretion, suffers ‘great which the victim assault in by judicial any panded, an inflict cruel and extreme pain, where the infers intent to bodily injury’ jury violent and the assailant’s conduct was extremely whether regardless the fact 426.) at This characterization (Dis. disregards callous.” post, p. opn, the defendant inflicted must not find only that for a torture conviction intended to do so for the also that the defendant but bodily great injury extortion, other sadistic or some purpose. of revenge, persuasion, purpose torture from an the offense of additional distinguishes This intent requirement Here, to determine. for a matter for a jury assault is clearly aggravated at had ended the initial indicating struggle there was evidence example, ear; did bite ear while she resisting Pre he her time bit victim’s but after he only had choked her into unconsciousness and moved her body into his This evidence was sufficient to lap. an inference Pre did not but merely engage in an assault had sadistic to inflict separate purpose great bodily when he bit her ear. pain
Further, while the California Court has Supreme specifically 206, addressed the crime of torture contained in section it has made it clear that the of additional purpose for conduct to torture punishment amounting is not based on the victim extreme or or the experiencing suffering pain violence, of extreme since presence extreme violence exist in circum may stances other conduct involving such an of violence. explosion v. Rather, Mincey, supra, 432.) Cal.4th Court has Supreme explained the additional is because the punishment defendant’s intent to inflict imposed for a sadistic of additional purpose deserving v. punishment. (People 247, 267-268; Davenport, supra, Cal.3d 18 Cal.3d Wiley 168-169 554 P.2d The focus must be Cal.Rptr. extortion, on the defendant’s intent to inflict for revenge, persuasion sadistic any rather than on the severity of the or the injuries duration of the attack.
The Court has indicated that the nature and Supreme extent of the bemay considered in injuries assessing the defendant’s intent. The nature and here, extent of the not as injuries severe as those in the although perhaps case, Singleton were consistent with the finding of in jury’s particular, bite on victim’s back and the apparent ear A could infer injury. these were inflicted while the injuries victim was unconscious and constituted sadistic acts that were not of a mere assault. part and
Finally, Pre’s assertion the conclusion of contrary the dissent redefine, his actions characterizing Rose as torture “is to against and minimize, torture,” and gruesome sadistic nature of we conclude Pre’s violent and conduct depraved clearly falls within ambit of the torture statute. The evidence a that Pre a finding selected woman unknown supports him, forced into her entry attacked her when she apartment, viciously resisted, unconsciousness, twice choked her into and then intentionally inflicted and bodily cruel and extreme while she was great and for no other than helpless or sadistic apparent revenge pleasure. statute, This is exactly nightmarish of situation the torture section type was intended address. The evidence was sufficient Pre’s conviction of abundantly support torture.
Y*
DISPOSITION to show the abstract of judgment is ordered to amend court The superior of a to the a and certified copy Department 3 as torture forward charge, count is affirmed. all the judgment Corrections. In other respects Benke, J., concurred. J., majority’s and
McINTYRE, Dissenting. I agree Concurring sufficiency of Pre’s contentions appeal, except analyses that Pre acted with the specific evidence to the jury’s finding or any he acted for revenge, cause cruel or extreme or that persuasion issue, I dissent. On this latter sadistic respectfully purpose. in June when was codified in California
The crime in to the facts 115 in response California electorate passed Proposition v. Singleton Cal.Rptr. 333]. Cal.App.3d [169 Jung (dis. Cal.Rptr.2d 5] case, J.).) sexually In Armstrong, Singleton kidnapped opn. victim, in her in ditch abused his then off her hands dumped chopped convicted of location. was later with and charged attempted remote He crimes, murder, in sex which resulted mayhem, kidnapping multiple after Singleton sentence fourteen four months years, prison. paroled crime seven and thereafter new served having just years prison *12 as ‘to such 115 insure that crimes torture was included in “Proposition ” (Id. at of life receive minimum Singleton’s punishment imprisonment.’ 1048, Joint Safety, Com. on Public Judiciary, Sen. Com. Assem. quoting p. 3, 005.) at p. on Crime Justice Reform Act pt. Victims Hearing the existing legal section was not intended to alter Penal Code 206 torture, to that conduct amounting definition of but was codified ensure situations be no less than life in even in torture would punished by prison v. Barrera as in Singleton. (People (1993) 14 survives, where the victim 1555, as recognizes The majority 1564 Cal.Rptr.2d Cal.App.4th [18 “to was much, section 206 intended that the of Penal Code noting adoption and callous criminal law violent dealing extremely gap existing fill[] Barrera, ante, supra, v. People 419, 14 at p. quoting conduct.” (Maj. opn, 1573.) at p. Cal.App.4th
* footnote, ante, page See 413. the intent the Notwithstanding original underlying Penal Code adoption accretion, section the of the statute has application expanded, judicial assault in the victim any which suffers where the “great bodily injury” jury infers an intent to inflict cruel and extreme regardless of whether the pain, e.g., assailant’s conduct was (See, violent callous. extremely v. Hale Cal.App.4th the Cal.Rptr.2d [holding 904] crime of torture focuses on mental state of the not on whether perpetrator, inflicted].) statute, actual Under such an application virtually any assault Code aggravated by Penal section 245 that proscribed results in 206; great bodily as torture under Penal injury may Code section if qualify conduct, infers the intent jury from the defendant’s requisite defendant will be a life subject sentence rather than a two- sentence four-year Code, to an (Pen. assault conviction applicable aggravated (a)), subd. § if even the crime was not heinous and the particularly injuries were not substantial. This is not what particularly voters intended in passing view, 115. In of our as a Proposition my function court is part reviewing see that the law accordance with applied its the intent purpose it. underlying out,
As the our review of the majority opinion points sufficiency However, evidence to verdict is limited. I with the jury’s disagree conclusion that this us majority’s limitation from that a precludes finding reasonable trier of fact could not have inferred the requisite specific fact, from the circumstances of Pre’s attack on Rose. In no existing published case has the crime recognized out of conduct arising similar to what Pre in here. Without engaged nature of Pre’s attack on minimizing Rose and that Pre’s conduct recognizing be viewed as somewhat may unusual, I nonetheless conclude that could not infer that reasonably Pre acted with the intent or cause cruel extreme or for revenge, conduct, sadistic from his which persuasion any was neither callous,” Singleton. violent and nor to that “extremely involved in comparable A reasonable could not infer from the juror circumstances his surrounding inflict attack on Rose that Pre intended to cruel or extreme Characteriz- pain. minimize[s], ing “redefine[s], Pre’s actions as torture against Rose and sadistic nature of gruesome which has been long recognized Jung, supra, the most heinous of human conduct. . . .” among reasons, J.).) at (dis. For these p. Armstrong, I opn. would reverse Pre’s conviction of torture. *13 for review Court denied
Appellant’s petition June Supreme 2004.