P. v. Kirkpatrick



























Filed 2/6/13 P. v.
Kirkpatrick CA2/2













NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS







California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for publication
or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION TWO




>

THE PEOPLE, Plaintiff and Respondent, v. DANIEL DARNELL KIRKPATRICK, Defendant and Appellant.

B234202 (Los Angeles County Super. Ct. No. BA374162)

APPEAL from a judgment of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Craig Richman,
Judge. Affirmed.



Rachel
Lederman, 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, Lawrence M. Daniels and
Allison H. Chung, Deputy Attorneys General for Plaintiff and Respondent.





Defendant
and appellant Daniel Darnell Kirkpatrick (defendant) appeals his conviction of href="http://www.mcmillanlaw.com/">aggravated mayhem, challenging it as
unsupported by substantial evidence of a specific intent to permanently disable
or disfigure the victim. Defendant also
contends that substantial evidence did not support his conviction as an actual
perpetrator or as an aider and abettor; and that the trial court erred in
instructing the jury regarding the natural and probable consequence theory of
liability. Finding no merit to
defendant’s contentions we affirm the judgment.

>BACKGROUND

1. Procedural history

Defendant was charged in
an amended information with aggravated mayhem in violation of Penal Code
section 205href="#_ftn1" name="_ftnref1"
title="">^[1] (count 1), and two counts of second degree
robbery in violation of section 211 (counts 2 and 3). As to count 2 it was alleged, pursuant to
section 12022.7, subdivision (b), that defendant personally inflicted great
bodily injury upon the victim Antonio Bahena (Antonio),href="#_ftn2" name="_ftnref2" title="">^[2] paralyzing him and causing him to become
comatose due to the brain
injury.

A jury found defendant
guilty of all three counts as charged and found true the allegation that he
personally inflicted great bodily injury.
The trial court sentenced defendant to three years on count 2 and a
consecutive eight months on count 3, plus life in prison as to count 1, for a
total prison sentence of life plus three years eight months. The trial court awarded 407 days of custody
credit, and ordered defendant to pay mandatory fines and fees, plus attorney
fees of $5,000. Defendant filed a timely
notice of appeal.

2. Prosecution evidence

Gumecinda
Bahena (Gumecinda) and her husband Antonio operated a small clothing store in Los
Angeles. On July 18, 2009, three young men came
into the store. While one asked for
change and to see a medium T-shirt, the other two leaned against a glass
display case and said nothing. After
rejecting the T-shirt, the young men left, only to rush back into the store
about two minutes later. One ran
directly to Gumecinda and the other two ran toward Antonio. Gumecinda saw one of the men raise his arm as
he reached Antonio, but nothing after that.
Gumecinda was grabbed violently and thrown to the floor by the one man
who also covered her mouth, straddled her, and demanded money.

While immobilized by her
assailant, Gumecinda could hear Antonio being beaten. She heard him gasping as though choking, and
she heard “many, many blows” which continued for 10 minutes. Gumecinda said, “Please stop hitting my
husband. All the money [is] inside the
drawer by the desk.” She was told by her
assailant to shut up, and was struck hard on the side of the head, which caused
her head to hit the cement floor which left her briefly unconscious. After she no longer heard the sounds of
Antonio’s beating, the man holding her told the others to put small and medium
white T-shirts in a black bag. Gumecinda
then heard drawers and cabinets opening and other noises.

When one of the men said,
“Someone’s coming,” Gumecinda’s assailant stood up, kicked her, and the three
men then left the store. Gumecinda had
yellow spots before her eyes, could barely breathe, and was too dizzy to
rise. After a few minutes she called
911. She found Antonio unconscious,
lying on the floor six feet further into the store from where he was when first
attacked. Antonio was covered in blood
and had numerous injuries. After the
paramedics took Antonio to the hospital, Gumecinda was examined in an emergency
room. When Gumecinda returned to the
store the next day, she determined that the robbers had taken a dozen T-shirts,
about $50 in cash, and her purse.

Trauma surgeon, Dr. Lydia
Lam, testified that when Antonio arrived at the emergency room, he was in a
coma, nonresponsive, could not breathe on his own, and had to be
intubated. His ear and neck were
swollen, a piece of his tongue was missing, and he had a large laceration on
the back of his head, a cut lip, several missing teeth, and blood in his mouth. He was bruised all over his face, the left
side of his head, his chest, and his shoulder, but there were no bruises on his
hands or his body below his upper chest.
His left eye orbit was depressed.
CT scans and X-rays revealed bleeding in the brain, significant facial
fractures over his entire face, and a tooth lodged in his lung. Surgery was required. Dr. Lam testified that the head was more
vulnerable to life-threatening injuries from blunt-force trauma than any other
part of the body.

Antonio was 66 years old
at the time of the robbery. Although he
had been a bit incapacitated by back surgery, he had no problem moving around
before the beating. At the time of
trial, Antonio was being cared for in a convalescent hospital, still in a coma
and paralyzed, with a feeding tube and an IV, and unlikely ever to emerge from
the coma.

Several
weeks after the robbery, Gumecinda identified a photograph of Marco Placido
(Placido) as the young man who had assaulted her. The investigating officers, Los Angeles
Police Department (LAPD) Detectives Humphreys and Michael Matsuda interviewed
Placido and surreptitiously recorded the interview. At trial, Placido was granted use immunity
and called by the prosecution as a witness.
He was not very forthcoming, claiming not to know defendant very well
and not to remember a great deal of what he had previously told the
police. Placido testified that he had
lied in his interview due to threats and promises by the detectives. He admitted that he had pled no contest to
one count of robbery and one count of mayhem in this case. Placido denied that he was afraid to testify,
suggested that defendant was innocent, and claimed that the person he named in
his interview with the detectives was a person named “Daniel T.” -- not
defendant. He admitted however, that he
had identified a photograph of defendant as the Daniel he meant, and that he
laughed when he identified him because his “friend” looked funny in the
photograph.

A
redacted recording of Placido’s police interview was played for the jury. In the interview Placido admitted being
familiar with the store as he had been there many times to buy shirts and
socks. He admitted that the couple was
beaten in order to rob them, but claimed that his part in the robbery was
solely as a lookout. He claimed that he
merely watched as the others held the woman and beat up the man, who
“definitely” looked to be old, in his 60’s.
The others involved were his friends “Mike” and “Fred.” Later he gave Mike’s full name as Michael
Andrews and added there was fourth robber named Samuel Turner. Placido claimed that Michael Andrews beat the
man while Samuel Turner held the woman.
Placido told the detectives he was afraid and did not want the others to
know that he told the detectives about them.
Placido then told the detectives that Daniel Thomas was one of the
robbers, but when he was shown a six-person photographic lineup (six-pack),
Placido identified a photograph of defendant and confirmed that Daniel’s last
name was Kirkpatrick.

LAPD
Detective Kenneth Schmidt testified that he and Detective Humphreys interviewed
defendant in July 2010. Detective
Humphreys advised defendant of his Miranda
rightshref="#_ftn3" name="_ftnref3" title="">^[3] which defendant knowingly waived. When Detective Humphreys showed him
photographs of the store, defendant told her he was not familiar with it, had not
been there, and never shopped in the area.
He also denied knowing Marco Placido.
When defendant was asked questions about the robbery, he remained
silent. When Detective Humphreys asked
defendant whether he had personally beaten the man or was simply present,
defendant gave no response.

Detective
Matsuda described the state of the store after the robbery. He identified photographs showing pooling
blood and blood spatter on the furniture, concentrated mostly at the bottom of
the furniture. In addition to the blood,
pictured on the floor were black plastic shopping bags, T-shirts, eye glasses,
bloody shoe prints, and a tooth. A
fingerprint was lifted from one of the black shopping bags. Forensic fingerprint specialist Anthony Ortiz
testified that he obtained defendant’s fingerprints and compared them to the
print lifted from the bag. He was able
to identify the fingerprint from the bag as belonging to the defendant.

Defendant
did not provide any evidence.

>DISCUSSION

I. Substantial evidence supports aggravated
mayhem

Defendant contends that
his conviction of aggravated mayhem was unsupported by substantial evidence.

“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.)

To determine whether the
conviction lacks adequate evidentiary support, we “review the whole record in
the light most favorable to the judgment below 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) 26 Cal.3d 557, 578;
see also Jackson v. Virginia (1979)
443 U.S. 307, 318-319.) We must
“presume[] in support of the judgment the existence of every fact the jury
could reasonably deduce from the evidence.
[Citation.]” (People v.
Kraft (2000) 23 Cal.4th 978, 1053.) We do not reweigh the evidence or resolve
conflicts in the evidence. (>People v. Young (2005) 34 Cal.4th 1149, 1181.) We review circumstantial evidence under the same
standard that applies to direct evidence. (People v. Kraft, at
p. 1053.) Reversal for lack of
substantial evidence “is unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th
297, 331.)

A. Specific intent

Defendant contends there
was insufficient evidence of an intent to cause permanent disability or
disfigurement to Antonio.

“Aggravated mayhem is a
specific intent crime which requires proof the defendant specifically intended
to cause the maiming injury, i.e., the permanent disability or
disfigurement. [Citation.]” (People
v. Quintero (2006) 135 Cal.App.4th 1152, 1162 (Quintero).) “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.]”
(People v. Bloom (1989) 48
Cal.3d 1194, 1208.)

“[S]pecific intent to
maim may not be inferred solely from evidence that the injury inflicted
actually constitutes mayhem; instead, there must be other facts and
circumstances which support an inference of intent to maim rather than to
attack indiscriminately.
[Citation.]” (>People v. Ferrell (1980) 218 Cal.App.3d
828, 835 (Ferrell).) Such circumstances may be those “attending
the act, the manner in which it is done, and the means used, among other
factors. [Citation.]” (Id.
at p. 834.) “Thus evidence of a
‘controlled and directed’ attack or an attack of ‘focused or limited scope’ may
provide substantial evidence of such specific intent. [Citation.]”
(Quintero, supra, 135
Cal.App.4th at p. 1162, quoting People v.
Lee (1990) 220 Cal.App.3d 320, 325-326 (Lee).) Evidence of specific intent may be sufficient
where the “circumstances show defendant’s attack was the product of
deliberation and planning . . . .” (>People v. Park (2003) 112 Cal.App.4th
61, 70 (Park).) “However, where the evidence shows no more
than an ‘indiscriminate’ or ‘random’ attack, or an ‘explosion of violence’ upon
the victim, it is insufficient to prove a specific intent to maim. [Citation.]”
(Quintero, at p. 1162, quoting
Lee, supra, at p. 326.)

Defendant contends that
the circumstances of this case are analogous to three cases in which the
evidence showed no more than a sudden indiscriminate, random, or unfocused
attack. In People v. Anderson (1965) 63 Cal.2d 351, 356, the defendant, a
boarder in the home of the victim’s mother, became enraged when the child
cursed him, and he stabbed her over 60 times over her entire body. In People
v. Sears (1965) 62 Cal.2d 737, 740-741, defendant had not planned to strike
the victim when he attacked her mother with a pipe, but when the child
unexpectedly intervened, he hit her several times, causing lacerations on her
face. In Lee, supra, 220
Cal.App.3d at page 326, the defendant suddenly punched his neighbor three times
without any conceivable reason, leaving him partially paralyzed. (Ibid.) We discern no similarity between the facts of
these cases and the facts of this case.

A better analogy may be
found in Ferrell, >supra, 218 Cal.App.3d at page 835, where
the defendant’s deliberate, directed, controlled attack was apparently planned
in advance. There, the defendant had
been sent by a friend from jail; her intent to disable the victim permanently
was demonstrated by her armed entry into the victims’ home, where she
immediately disabled the victim’s father with a gunshot to the knee and
restrained her mother at gunpoint, before firing one shot into the victim’s
neck at short range, paralyzing her, and then immediately leaving. (Ibid.) Similarly here, the evidence suggested that
the attack on Antonio was planned, directed, and deliberate. Placido was well acquainted with the small
store and thus most likely with Antonio and Gumecinda as well. The three robbers first entered the store
under circumstances which suggest they were studying the location in advance of
their intended robbery. They regrouped
outside the store and reentered with their apparent plan: one of them went immediately to Gumecinda and
restrained her violently, while the others went directly to Antonio, where he
was knocked down violently on the concrete floor and later found six feet away
from his original position, with a large laceration on the back of his
head. The inference is inescapable that
the robbers intended to disable the couple in order to carry out the robbery.

However, the beating of
Antonio went further than merely disabling him for the duration of the
robbery. Instead it was focused on his
head, a particularly vulnerable area, and continued for 10 minutes, leaving
nearly every bone in his face broken while he choked on his blood, a dislodged
tooth, and perhaps a piece of his tongue.
Antonio was 66 years old, and obviously so, according to Placido. A shorter, less severe beating would surely
have disabled him long enough to take the desired items from the store. As the court reasoned in Ferrell, evidence of intent may be inferred from a violent act
which anyone would know, without “special expertise . . . , if not fatal, is
highly likely to disable permanently.” (>Ferrell, supra, 218 Cal.App.3d at p. 835.)

Defendant cites several
cases in which the defendant knew the victim and used a weapon to disfigure the
victim’s face, and he concludes from such cases that evidence of intent to maim
is insufficient unless the defendant used a weapon and harbored a grudge. (See People
v. Szadziewicz (2008) 161 Cal.App.4th 823, 830-831 [angry defendant repeatedly
slashed the face of his daughter’s boyfriend with a box cutter after learning
that the victim used drugs]; Quintero,
supra, 135 Cal.App.4th at p. 1158
[angered by victim’s sexual advance, defendant cut his face with a utility
knife]; Park, supra, 112 Cal.App.4th at p. 65 [perceiving disrespect for his
gang, defendant broke eight of victim’s teeth with a knife-sharpening steel]; >People v. Campbell (1987)> 193 Cal.App.3d 1653, 1668-1669 [jealous
defendant used screwdriver and brick to sever girlfriend’s ear].)

Defendant’s conclusion
would be somewhat less strained if the prosecution’s theory had been that the
robbers harbored a specific intent to disfigure
Antonio. However, the prosecution
proceeded on the theory that the robbers intended to permanently disable Antonio.href="#_ftn4" name="_ftnref4" title="">^[4] In any event, we reject defendant’s
suggestion that a weapon is required to establish intent. While the use of a weapon and a vengeful
motive provided strong evidence of a specific intent to disfigure the victims’
faces in the cases cited by defendant, none held such factors were required
elements, without which intent cannot be proven. (See
People v. Szadziewicz, supra, 161
Cal.App.4th 823; Quintero, >supra, 135 Cal.App.4th 1152; >Park, supra, 112 Cal.App.4th 61;
People v. Campbell, supra,> 193 Cal.App.3d 1653.) Moreover, as the injuries to Antonio
demonstrate, fists and a concrete floor can be very effective weapons.

We conclude that
substantial evidence supports the jury’s implied finding that Antonio’s
assailants acted with the specific intent to permanently disable their victim.

B. >Defendant was a principal

Defendant contends that
substantial evidence did not support his conviction either as the actual
perpetrator or as an aider and abettor.
We agree with respondent that the evidence was sufficient to establish
that defendant was either the actual perpetrator or that he aided and abetted
Antonio’s assailant in the aggravated mayhem.

“All persons concerned in the commission of a crime, .
. . whether they directly commit the act constituting the offense, or aid and
abet in its commission . . . are principals in any crime so committed.” (§ 31.)
“Aider-abettor liability exists when a person who does not directly
commit a crime assists the direct perpetrator by aid or encouragement, with
knowledge of the perpetrator’s criminal intent and with the intent to help him
carry out the offense. [Citation.]” (People
v. Miranda (2011) 192 Cal.App.4th 398, 407, citing People v. Beeman (1984) 35 Cal.3d 547, 560-561.) Aider and abettor liability attaches to
anyone who is concerned in the crime, either directly or indirectly and even
slightly, with the requisite state of mind.
(People v. Nguyen (1993) 21
Cal.App.4th 518, 529-530 (Nguyen).)

Factors relevant to determining whether substantial
evidence supports a finding that defendant was an aider and abettor include
companionship and conduct before or after the offense. (E.g., In
re Juan G. (2003) 112 Cal.App.4th 1, 5; People
v. Campbell (1994) 25 Cal.App.4th 402, 409; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.) For aiding and abetting liability to attach,
the intent to aid and abet may be formed either prior to or during commission
of the offense. (See People
v. Cooper (1991) 53 Cal.3d 1158, 1164-1165.) Indeed, “advance knowledge is not a
prerequisite for liability as an aider and abettor.” (People
v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 742.) “Aiding and abetting may be committed ‘on the
spur of the moment,’ that is, as instantaneously as the criminal act
itself. [Citation.]” (Nguyen,
supra, 21 Cal.App.4th at p. 532.)

1. Shared intent

There
were three robbers; Placido immediately restrained Gumecinda; defendant and the
third robber ran together toward Antonio, one with arm raised and ready to
strike. Gumecinda testified that Placido continued to
restrain her while one or both of the others beat Antonio for 10 minutes
before ransacking the store. Defendant’s fingerprint on a shopping
bag confirms that defendant was one of those two men. Thus, defendant either personally beat Antonio into a coma or
assisted his companion in doing so. The
attack lasted approximately 10 minutes and targeted Antonio’s head -- a
particularly vulnerable part of his body.
The force was so great that four of Antonio’s teeth were dislodged and he
sustained multiple facial fractures and brain swelling. As the prosecutor argued to the jury, any
reasonable person would know that striking another’s head repeatedly for 10
minutes would likely cause permanent disability or disfigurement. Accordingly, “[defendant’s act of] limiting
the scope of his attack to [Antonio’s] head shows this was not an
indiscriminate attack but instead was an attack guided by the specific intent
of inflicting serious injury upon [Antonio’s] head.” (Park,
supra, 112 Cal.App.4th at p. 69.)

2. Natural and probable consequence

Defendant contends that aggravated mayhem was not a
natural and probable consequence of the robbery in this case.

When the crime charged was not the crime the defendant
intended to aid and abet, the jury “must also find that . . . the defendant’s
confederate committed an offense other
than the target crime; and . . . the offense committed by the confederate
was a natural and probable consequence of the target crime that the defendant
aided and abetted.” (>People v. Prettyman (1996) 14 Cal.4th
248, 262, fn. omitted.) A natural and
probable consequence is one that was reasonably foreseeable, determined under
an objective standard. (>People v. Medina (2009) 46 Cal.4th 913,
920.) Whether an unplanned crime is a
reasonably foreseeable consequence of the target crime is a factual question
for the jury to assess in light of all the circumstances. (Ibid.;
Nguyen, supra, 21 Cal.App.4th at p. 531.)

Defendant contends that aggravated mayhem was not a
foreseeable consequence here because he “only intended to commit robbery.” Both parts of his contention, the premise and
the conclusion, are without merit. When
several men enter a store with the intent to commit an unarmed robbery, it is
at least foreseeable that an assault causing great bodily injury may be the
natural and probable consequence. (See >People v. Fagalilo (1981) 123 Cal.App.3d
524, 528, 532.) Here however, more than
just a robbery was contemplated. Placido
admitted to Detective Humphreys that the purpose of beating Antonio and
Gumecinda was to take their money.
Further, Gumecinda testified and Placido admitted that the beating began
immediately after the men entered the store the second time. Thus, the target offense contemplated by the
robbers was twofold: a robbery
accomplished by means of a physical assault apparently intended to disable the
victims while the robbers stole items from the store. These circumstances amply supported a jury
determination that a reasonably foreseeable consequence of the shared intent to
temporarily disable the victims with a violent physical assault, would become
an intent on the part of at least one of the assailants to disable the victim
permanently.

II. CALCRIM No. 402

Defendant contends that
because the evidence was insufficient to support a finding that the natural and
probable consequence of the robbery was aggravated mayhem, the trial court
erred in instructing the jury with CALCRIM No. 402, which explains the
doctrine.href="#_ftn5" name="_ftnref5"
title="">^[5] The prosecution requested the instruction,
and as we have determined, substantial evidence supported a finding that
aggravated mayhem was a natural and probable consequence of the robbery in this
case. Thus the trial court was required
to give the instruction, and there was no error. (See Nguyen,
supra, 21 Cal.App.4th at pp.
528-529.)

>DISPOSITION

The judgment is
affirmed.

NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS.



_______________________,
J.

CHAVEZ

We concur:



_________________________, Acting P. J.

DOI TODD



_________________________, J.

ASHMANN-GERST