P. v.
Filed 9/11/13 P. v. Pierre CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
MARKUS PIERRE,
Defendant and Appellant.
B244001
(Los Angeles
County Super.
Ct.
No. NA088187)
APPEAL from
a judgment of the Superior Court
of
County, Arthur Jean, Jr., Judge. Affirmed.
Siri
Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, and Daniel C. Chang, Deputy Attorney
General, for Plaintiff and Respondent.
_______________________________
The jury convicted defendant and
appellant Markus Pierre in count 1of attempted murder (Pen. Code §§ 664, 187
subd. (a)),
title="">[1] in count 2 of
3 of aggravated mayhem (§ 205), and in count 4 of criminal threats (§ 422).
a deadly and dangerous weapon in counts 1-3 (§ 12022, subd. (b)(1)). The jury found not true the allegation in
count 1 that the attempted murder was willful, deliberate, and
premeditated. The trial court found true
the allegation that defendant served a prior prison term (§667.5, subd. (b)) as
to counts 1-4.
The trial court sentenced defendant
to seven years to life on count 3, plus one year for each weapon use and prior
prison term enhancement for a total of nine years to life in state prison. The court imposed sentences as to counts 1,
2, and 4 but stayed the sentences pursuant to section 654.
Defendant contends the trial court
abused its discretion in dismissing a juror from the case and that there is
conviction for aggravated mayhem. We
affirm the judgment.
FACTS
Prosecution
Defendant was interested in Melissa
D. romantically and sexually. Although
Melissa knew defendant, she did not reciprocate defendant’s feelings, nor was
she involved in either a sexual or romantic relationship with him. Defendant called Melissa often between June
2010 and February 2011. Melissa was
concerned at the frequency of the calls.
She felt defendant was stalking her and believed it was necessary to
change her phone number. She called the
police to get a restraining order against defendant.
At approximately 9:00 p.m. on
February 25, 2011, Melissa received a phone call from defendant. Defendant did not speak to her but instead
just “h[e]ld the phone.†Melissa went
home to her apartment alone and fell asleep on her bed next to the window.
At approximately 11:30 p.m., Melissa
awoke to find defendant leaning through the window next to her bed and choking
her. Defendant was squeezing her neck so
hard that Melissa could barely speak or breathe. He had a scalpel in his hand and threatened,
“Bitch, I am going to kill you.â€
Melissa fought defendant and was
able to break free of his grip. As she
got out of bed she noticed that her chest was cut. Melissa screamed for help and ran out of her
bedroom toward the door to her apartment.
As she was fleeing, she felt a cutting sensation on the left side of her
back. Defendant caught Melissa on the
front porch and started choking her a second time.
Melissa’s neighbors, David Figueroa
and Darlene Cota, heard Melissa screaming to them for help. Figueroa heard Melissa scream that she was
being stabbed. Cota called 9-1-1 and told
the operator a man was beating up a girl in the next apartment.
turned on the light. She heard someone
being choked and saw defendant and Melissa on Melissa’s porch. Cota recognized defendant as someone she had
seen before.
title="">[4] Defendant explained that he was getting his
clothes from Melissa’s laundry room.
When defendant walked toward Cota, Melissa ran back into her apartment,
locked the door, and screamed. Defendant
yelled that he wanted his things back and tried to get into Melissa’s
apartment. He then screamed, “Bitch I am
going to kill you. I am going to get
you. I am going to finish what I started.†Cota saw something shiny in defendant’s hand.
Cota walked past defendant and went
into Melissa’s apartment. Melissa
appeared hysterical. She told Cota that
defendant stabbed her and tried to kill her.
Melissa’s shirt was torn, but Cota did not notice Melissa was bleeding
until later, when she saw blood on Melissa’s chest, back, and side.
While the women were inside,
Figueroa observed defendant running toward the street. Figueroa recognized defendant from the food
bank. He had also seen defendant at
Melissa’s apartment on occasion.
Figueroa noticed a small knife, which he identified as a scalpel, in
defendant’s hand.
name="_ftnref5" title="">[5] Figueroa warned defendant to leave before the
police got there. Defendant responded
that he was going to come back and kill Melissa. Defendant made the threat when he was
approximately 12 feet away from Figueroa.
Long Beach Police Officer George
Evans and his partner responded to the scene.
When they arrived, a woman came out of the apartment and screamed that
she had been stabbed. She was wearing a
white T-shirt soaked with blood. Officer
Evans surveyed the area and observed the bedroom window open approximately two
feet wide, and the screen lying outside on the grass. There was fresh blood on the porch leading to
the bedroom. There was also blood on the
bed. Melissa told Officer Evans that
defendant had come through the window while she was sleeping and slashed her
with a scalpel.
Soon afterward, the paramedics
arrived and transported Melissa to the hospital for her injuries. Melissa’s treating physician, Dr. Mauricio
Heilbron, performed surgery on a minimum of six lacerations. The lacerations were serious. Some of them were disfiguring and penetrated
her skin and subcutaneous fat. One of
the disfiguring lacerations was made around the area of Melissa’s right
breast. The laceration was so deep Dr.
Heilbron had to take special care to close the incision. He described it as a “horrible slash across
the woman’s chest and breast.†Melissa’s
wounds were consistent with the type caused by a scalpel. He explained that her cuts were
“extraordinarily clean.†“The . . .
breast wound has a curve to it. It is
very hard to cut a curve with a serrated knife.
You have to saw. And this
wasn’t.†Melissa was hospitalized for
approximately three weeks.
After Melissa left the hospital,
defendant left several voice mail messages on her phone. He called her a “cheap little bitch†and
threatened to beat her.
name="_ftnref6" title="">[6]
Defense
Defendant testified that on
February 25, 2011, he and Melissa were having a difficult relationship. He had been at Melissa’s earlier in the day
but left around 5:30 or 6:00 p.m., because Melissa accused him of having an
affair and hit him. As defendant was
leaving, Melissa told him she planned to call her boyfriend, Junior Mack. Melissa called defendant around 11:00 or
11:30 p.m. and sounded hysterical. She
begged defendant to come back. Defendant
testified that he could hear a voice in the background yelling, “Bitch, you are
not going to have this baby. I hope this
baby dies.†Defendant heard a pounding
noise and screaming. Then Mack said to
defendant, “Yeah, I did that.†Defendant
replied that he was coming to Melissa’s apartment.
When defendant got to Melissa’s
apartment at approximately 1:00 or 2:00 a.m., there were no officers
present. He saw blood on the porch. Defendant denied attacking Melissa with a
scalpel. He did not tell the police that
Mack had attacked Melissa when they questioned him later, because he was afraid
for Melissa and her children. He told
Long Beach Police Officer Eric Fernandez his name was Carlos Pierre because he
was afraid of being attacked. Defendant
denied telling Officer Fernandez his twin brother, Carlos Pierre, stabbed
Melissa.
Rebuttal
On
rebuttal, Officer Evans testified that he was one of two officers who arrived
at Melissa’s apartment at 11:48 p.m.
Officer Evans did not leave until 3:24 a.m. He prevented anyone from entering the crime
scene while he was there.
Officer Fernandez testified that he
went to Lincoln Park on February 28, 2011, at approximately 1:30 p.m., as part
of his investigation of the case. He
approached defendant and asked him if his name was Markus Pierre. Defendant identified himself as Carlos Pierre
and stated that Markus was his twin brother.
Officer Fernandez asked for defendant’s identification at least five
times, but defendant did not comply.
Defendant got angry. He said he
was tired of being harassed for things his brother did. Defendant yelled and clenched his fists. Officer Fernandez and two other officers at
the scene restrained defendant and arrested him. Defendant was taken downtown for booking.
Without prompting, defendant said he
would tell Officer Fernandez what happened.
Defendant claimed his brother Markus hit Melissa and may have stabbed
her. He drove Markus to the bus station
and gave him $200. Markus was on his way
to Las Vegas. Defendant did not
elaborate beyond those facts, despite questioning. Officer Fernandez ran defendant’s
fingerprints and searched his pockets.
He discovered a California State Advantage card and another access card
on his person, which both bore the name Markus Pierre.
DISCUSSION
Discharge of
Juror for Misconduct
Defendant contends the trial court
abused its discretion in dismissing Juror No. 7 in violation of his
constitutional right to due process and a full and fair trial. Defendant asserts there was no basis for
dismissing Juror No. 7 for serious and willful misconduct, and that dismissal
of the juror, whom the parties believed was the lone “holdout†for defendant’s
innocence, “raised the possibility that the juror was dismissed in part because
she harbored doubts about the prosecution’s case . . . .†Defendant’s argument lacks merit.
After presentation of the evidence,
the trial court instructed the jury that “[y]our first duty is to determine
what facts have been proved from the evidence received in the trial and not
from any other source,†“[you must] conscientiously consider and weigh the
evidence, apply the law and reach a just verdict regardless of the
consequences,†and “you must not
independently investigate the facts or the law or . . . consult reference
works
or persons for additional information.â€
The jury began deliberating on July
25, 2012, at 10:45 a.m. At 3:20 p.m.,
the trial court received a note from the jury stating they were split on the
attempted murder count (approximately 3 guilty votes and approximately 9 not
guilty votes) and the mayhem count (approximately 11 guilty votes and
approximately 1 not guilty vote). The
note also indicated the lone holdout juror on the mayhem count “feels that she
has reasonable doubt about the evidence.â€
The note stated: “We don’t think
we can change her mind. Please
advise.†The court advised the jury to
“take a big deep breath†and come back in the morning. The court then reminded the jury not to
discuss the case amongst themselves or with anyone else.
The jury resumed deliberations the
next morning at 9:40 a.m. At 11:25 a.m.,
the trial court received another note from the jury. The note indicated the jury was split on
counts 1-4, and the votes were split 11 to 1 in favor of guilt for counts
2-4. The note also stated: “There is one juror that is FIRM that there
is reasonable doubt regarding the evidence and so far we have been unable to
budge the opinion.†The court told the
jury to return at 1:30 p.m., at which point the attorneys would make additional
arguments.
At 11:35 a.m. that same day, Sandra
Uceda, a clerk of the adjacent courtroom, contacted the trial court. Uceda informed the court that a woman, later
identified as Juror No. 7, asked her whether a hung jury would result in a
retrial. Ten minutes later, Jonetta
Allen, the district jury commissioner, also contacted the court. She informed the court that a woman, also
later identified as Juror No. 7, asked her, “If a jury is hung, how many times
can they retry the case?â€
Subsequently, Juror No. 7 appeared
before the trial court and was questioned on the record:
“The Court: . . . Juror No. 7, it has come to my
attention that some things may have happened.
One thing that is suggested is that you went next door and had a
conversation with the clerk, Sandra Uceda, next door, and asked her if there
was a hung jury, whether there would be a retrial or not. [¶]
Did you do that?
“Juror No. 7: Did I do that?
“The Court: Yes, ma’am.
“Juror No. 7: I don’t know who was over there. I just asked the question.
“The Court: It was the clerk sitting behind the desk over
here in Department D and you asked that question.
“Juror No. 7: I just said what was the procedure, that’s
what I asked.
“The Court: If there was a hung jury?
“Juror No. 7: I just asked her what was the procedure.
“The Court: She is right there and we can bring her over
and ask her. She reported to me that you
asked her if there was a hung jury whether there would be a retrial. Is that what you asked her?
“Juror No. 7: I asked her if I am supposed to go up to the
jury box and ask questions I have with anything to do with what the procedure
is and what the law is.
“The Court: Did you go upstairs and ask the -- one of the
jury commissioners, the jury people up there, whether there would be a retrial
if there was a hung jury?
“Juror No. 7: They just said that they couldn’t
comment. So I took it that they could
not say anything.
“The Court: Did you ask that question?
“Juror No. 7: I don’t know if that was the specific
words. I just said what happens.â€
After Juror No. 7 returned to the
jury room, the trial court held an evidentiary hearing on the matter. Uceda testified that she worked as the clerk
in the adjacent courtroom. Around 11:30
a.m., a woman wearing a green headband and blouse approached her. She asked Uceda if she could ask a general
question, and Uceda replied that she could.
The woman then asked if a hung jury typically resulted in a
retrial. Uceda recognized the woman
because she had seen her wearing a juror badge earlier that morning. Uceda asked which courtroom the woman was
serving in. The woman did not
answer. Uceda then asked, “Aren’t you an
impaneled juror?†The woman did not
answer the question but instead said, “It is just a general question. You can’t answer a general question?†Uceda informed the woman she could not speak
to an impaneled juror about such matters and suggested the woman go back to her
courtroom and contact the bailiff. They
“went back and forth,†and then the woman asked if she could find out in the
jury room. Uceda did not know if the
juror had been excused or not. She
answered, “you might want to try that.â€
Allen testified that she was the
court’s district jury coordinator.
Sometime after 11:30 that morning, she was approached by a fair-skinned
African-American woman wearing a green top and a headband. The woman asked if she could ask a question,
and Allen responded, “Okay.†The woman
asked how many times a case could be retried if the jury could not reach a
unanimous verdict. Allen replied that
she could not answer the question. The
woman asked where she could find the information, and Allen stated that she
could not answer that question either.
The woman said, “Oh, okay†and left.
After this testimony, the trial
court stated: “My inclination is to dismiss this juror for misconduct. I think she has violated an order that I have
made several times not to discuss the case or seek information or consult
reference works or persons for any information.
The nature of the question goes right to the heart of the issue that is
here before the jury. And I don’t know
where she lies on the case, but I don’t think she belongs [on this] case.â€
Defense counsel objected, arguing
there had been no misconduct. The trial
court disagreed and dismissed Juror No. 7.
An alternate juror was selected to replace her, and the jury reached
their verdicts.
Following the jury’s verdicts,
defendant moved for a new trial. At the
hearing, defense counsel stated that he filed a declaration executed by Juror
No. 7 establishing she was the holdout juror.
The trial court denied defendant’s motion for new trial, stating: “I dismissed juror number seven because,
either expressly or by implication, I found that her -- there was misconduct,
there were at least two instances of misconduct involving the clerk in
department D next door, Ms. [Uceda] and up in the jury assembly room with our
jury coordinator. It appears to me that
these were willful instances of misconduct.
Before, Ms. [Uceda], she didn’t have her jury badge on, she wouldn’t
explain why she needed this information and then she went up and sought the
very same information from the jury coordinator. I think these were serious violations of
court orders. [¶] In looking at your declaration or in looking
at your filing, you bring in [juror number] seven’s declaration, she says
several of the jurors were talking about the case when there wasn’t a full jury
in the room. [¶] . . . [¶] Those seem to me to be, if true, and your
juror number seven is not a particularly credible reporter in my view, if true,
those appear to be violations of misconduct.
But they don’t appear to me to be of the serious kind of misconduct and
certainly no indication of prejudice.
[¶] When I dismissed juror number
seven, I didn’t know whether she was the hold-out juror or not and it didn’t
make any difference to me. As you
recall, you asked me to ask her and I wouldn’t do that. She could have been just as easily a juror
who wanted to bring information before the jury to persuade the hold-out juror
to vote the other way. [¶] In either instance, this was [an] attempt by
juror to bring information into either her own decision-making process or into
the decision-making process of the jury.
She may not do that. I believe
she was unable to properly discharge her duties. [¶] If
you recall during the course of the hearing when I was asking her about what
she did or didn’t do, she was not forthcoming to this court in answering
questions. She resisted telling the
truth until pushed, and even then I don’t think a clear truthful answer came
from juror seven. So I found and I do
find that her conduct was misconduct, it was willful, serious, prejudicial,
material to the proceedings before the court and she should be -- should have
been and was properly removed by me.
[¶] I must say that I’ve been a
trial judge now for, I’m in my 28th year of service, and I’ve had many
instances where parties have asked me to dismiss a juror. I never have, never done that. But I’ve never faced quite this serious a
violation of court order before by a juror.â€
Analysis
Pursuant to section 1089, a trial
court may discharge a juror if it finds the juror is unable to perform his or
her duty. We review the trial court’s
dismissal of a juror for abuse of discretion and will uphold the trial court’s
decision if it is supported by substantial evidence. (People
v. Marshall (1996) 13 Cal.4th 799, 843 (Marshall).) “A juror who refuses to follow the court’s
instructions is ‘unable to perform his [or her] duty’ within the meaning of
Penal Code section 1089. As soon as a
jury is selected, each juror must agree to render a true verdict ‘“according
only to the evidence presented . . . and to the instructions of the court.â€â€™
[Citation.]†(
441, 448.) A trial court may excuse a
juror who expresses an unwillingness to follow the court’s instructions. (Id.
at p. 461; People v. Cleveland (2001)
25 Cal.4th 466, 483-484 (Cleveland).)
A dismissed juror’s inability to
perform his or her duty “must ‘“appear in the record as a demonstrable
reality.â€â€™ [Citation.]†(Marshall,
supra, 13 Cal.4th at p. 843.) The
trial court abuses its discretion if its dismissal is based on the juror taking
a position contrary to that of the other jurors (People v. Hamilton (1963) 60 Cal.2d 105, 128, disapproved on other
grounds in People v. Daniels (1991)
52 Cal.3d 815, 865-866) or based upon the juror’s doubts about prosecution
evidence (Cleveland, supra, at p.
483).
The trial court did not abuse its
discretion in this case. As the Attorney
General highlights, Juror No. 7 was specifically instructed “not to consider
outside sources, not to independently investigate the law, not to consult
people for additional information, not to discuss the case with any person
other than a fellow juror, and not to consider the consequences of the
verdict.†She acted against all of these
instructions shortly after they were given, when she asked first Uceda, and
then Allen, what the consequences of a hung jury would be. Juror No. 7 was aware that the procedure for
asking questions was to send a note to the trial court through the
bailiff. And, in fact, the jury had done
this twice before Juror No. 7 elected to seek outside information concerning
the consequences if the jury was not able to reach a unanimous vote in the
case. Juror No. 7’s misconduct was
demonstrated on the record: she admitted
to questioning both Uceda and Allen “what was the procedure†and “what
happens,†although she was evasive in doing so.
Thus, substantial evidence supports the trial court’s decision.
Defendant’s argument that Juror No.
7’s discharge was based on the fact that she could not reach agreement with the
other jurors is belied by the record.
The trial court was not aware of her position on defendant’s guilt when
it discharged Juror No. 7 and, in fact, refused to question her regarding her
position. As the court stated at the
hearing for the motion for new trial, Juror No. 7 may have been the “hold-outâ€
seeking the information to make her own decision or she may have been another
juror seeking to use the information to sway the “hold-out†to vote with the
majority. In either case, the juror
improperly sought outside information concerning the consequences of the jury’s
votes, which was misconduct in direct contravention of the court’s
instructions.
Sufficiency of
the Evidence Supporting the Aggravated Mayhem Conviction
Defendant contends the evidence is
insufficient to prove that he intended to maim or disfigure Melissa, and his
conviction for aggravated mayhem should therefore be reversed. We disagree.
The Fifth and Sixth Amendments,
which apply to the states through the Fourteenth Amendment, require the
prosecution to prove all elements of a crime beyond a reasonable doubt. (Sullivan
v. Louisiana (1993) 508 U.S. 275, 277-278.)
A conviction supported by insufficient evidence violates the Due Process
Clause of the Fourteenth Amendment and must be reversed. (Jackson
v. Virginia (1979) 443 U.S. 307, 318.)
“‘In reviewing the sufficiency of evidence . . . , the question we ask
is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.â€â€™ [Citations.] . . . ‘In determining whether a reasonable
trier of fact could have found defendant guilty beyond a reasonable doubt, the
appellate court “must . . . presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.â€â€™ [Citation.]
The same standard also applies in cases in which the prosecution relies
primarily on circumstantial evidence.
[Citation.]†(
1175 (Young).)
We review the record in the light
most favorable to the prosecution to determine whether the challenged
conviction is supported by substantial evidence, meaning “evidence which is
reasonable, credible, and of solid value.â€
(People v. Johnson (1980) 26
Cal.3d 557, 578.) “[M]ere speculation
cannot support a conviction.
[Citations.]†(
35.) Nor does a finding that “the
circumstances also might reasonably be reconciled with a contrary finding . . .
warrant reversal of the judgment.†(
528-529.) The reviewing court does not
reweigh the evidence, evaluate the credibility of witnesses, or decide factual
conflicts, as these are the province of the trier of fact. (People
v. Culver (1973) 10 Cal.3d 542, 548; In
re Frederick G. (1979) 96 Cal.App.3d 353, 367.) “Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is
sufficient to support a conviction.
[Citation.]†(
“A person is guilty of aggravated
mayhem when he or she unlawfully, under circumstances manifesting extreme
indifference to the physical or psychological well‑being of another
person, intentionally causes permanent disability or disfigurement of another
human being or deprives a human being of a limb, organ, or member of his or her
body.†(§ 205.) The defendant must have the specific intent
to maim the victim. (
61, 64 (Park).) Evidence of only an “indiscriminate†or
“random†attack or “explosion of violence†upon the victim is not sufficient to
support a conviction. (
Cal.App.4th 1152, 1162) “‘Evidence of a
defendant’s state of mind is almost inevitably circumstantial, but
circumstantial evidence is as sufficient as
direct evidence to support a conviction.
[Citations.]’ [Citation.] In particular, ‘[a] jury may infer a
defendant’s specific intent from the circumstances attending the act, the
manner in which it is done, and the means used, among other factors.’ [Citation.]â€
(Park, supra, at p. 68.)
“‘[E]vidence of a “controlled and directed†attack or an attack of
“focused or limited scope†may provide substantial evidence of’ a specific
intent to maim. [Citations.]†(People
v. Szadziewicz (2008) 161 Cal.App.4th 823, 831 (Szadziewicz).)
Substantial evidence supports the
jury’s finding that defendant had the specific intent to maim or disfigure
Melissa. The attack was not
indiscriminate, random, or an explosion of violence. Defendant came through Melissa’s bedroom
window wielding a scalpel, a sharp instrument especially well-suited for
causing prominent and lasting wounds, as Dr. Heilbron confirmed when he opined
that a knife would have required a “sawing action,†whereas Melissa’s wounds
were consistent with a scalpel, which is designed to cut through flesh with
little resistance.
Melissa was asleep and not alerted
to defendant’s presence until after the wound to her breast had been
inflicted. Defendant focused his initial
attack on her breast area, slicing through her skin to create a wound that Dr.
Heilbron had to take special care to close, and which he described as
“disfiguring.†The wound was deep and
took significant time to heal, evidenced by Melissa’s three-week stay in the
hospital. Several photographs of
Melissa’s wounds, including the wound to her breast, were admitted into
evidence, and the jury had the opportunity to view their gruesome nature.
Moreover, defendant’s attack was
controlled when he entered the window.
He did not plunge the scalpel into Melissa’s chest or immediately attack
her in some other way that would have been more likely to cause immediate
death. He instead chose to inflict an
injury on a very personal, defining part of her body in a manner that would
leave her scarred and degraded should she live.
(See People v. Keenan (1991)
227 Cal.App.3d 26, 36 [sufficient evidence supported mayhem conviction where
wounds to the breasts “[were] a deliberate effort to degrade Ms. H. Because the disfiguration of Ms. H.’s breasts
represents such an intentional violation of the integrity of her person, and
because of the emotional disability that frequently attends a mutilation of
this sort . . . .â€].) To the extent the
attack may have later become indiscriminate, this was due only to Melissa’s
escape from the bed. While she remained
in his control, defendant’s attack was directed at permanently scarring her
breast. (See Szadziewicz, supra, 161
Cal.App.4th at p. 832 [evidence sufficient to support mayhem conviction where
attack became indiscriminate only after victim was able to get out of his bed
and offer resistance].)
An intent to cause a disfiguring
wound to the breast is also consistent with defendant’s motive for attacking Melissa. Defendant wanted an emotional and physical
relationship with her, which he ardently pursued to the point where Melissa
felt that she needed to protect herself by changing her phone number and
obtaining a restraining order against him.
The jury could infer in the face of such sexual rejection, defendant
retaliated by disfiguring Melissa on an intimate part of her body.
The cases upon which defendant
relies are inapposite. As the Attorney
General argues, People v. Sears
(1965) 62 Cal.2d 737 (Sears) and
(Anderson) both involved felony
murder with simple mayhem as prohibited by section 203 as the underlying
felony. The intent to commit mayhem
under section 203 is not equivalent to the intent to commit mayhem under
section 205, because the sections vary in their scope. “Section 205 broadly prohibits intentionally
causing ‘permanent disability or disfigurement . . . or depriv[ing] a human
being of a limb, organ, or member of his or her body,’ while the injuries which
are the subject of section 203 are more narrowly and precisely defined.†(People
v. Ferrell (1990) 218 Cal.App.3d 828, 835.)
In these cases, as in People v.
Lee (1990) 220 Cal. App.3d 320 (Lee),
which defendant also cites, there were not controlled and directed injuries to
specific areas of the victim’s bodies, as in the present case. The victims were attacked horrifically, but
indiscriminately. (See
him and stabbed the child more than 60 times over her entire body];
attacked her mother with a pipe; and defendant hit the child several times, and
killed her by puncturing her jugular vein with a knife]; Lee, supra, at p. 326
[defendant suddenly punched and kicked his neighbor several times without
provocation, leaving him partially paralyzed].)
Here, sufficient evidence of a controlled and directed attack was
presented to support defendant’s conviction for aggravated mayhem.
DISPOSITION
The judgment is affirmed.
KRIEGLER,
J.
We concur:
TURNER,
P. J.
MOSK,
J.
further statutory references will be to the Penal Code, unless otherwise
designated.
