Filed 5/2/17 P. v. Chatman CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, v. SUZANN CHATMAN et al., Defendants and Appellants. D069243 (Super. Ct. No. SCD259575) APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant Suzann Chatman. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Rogers Butler. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent. 2 Defendants and appellants Suzann Chatman and Rogers Butler were homeless and occasional guests of the victim, Michael Burt, who, although he had been homeless, had a small apartment. Apparently because they believed Burt had provided Chatman with a date rape drug and then sexually assaulted her, late one evening Chatman and Butler entered Burt's apartment and began attacking him. According to Burt, at one point, while Butler held Burt down, Butler told Chatman to find him a knife because, "I'm going to scalp this fucking Indian." Chatman found a knife, and, while Butler and Chatman held Burt down, Butler began cutting the front of Burt's scalp; when Burt began bleeding profusely, Chatman and Butler fled. Burt survived the attack, but, according to one of the physicians who treated him, he had a laceration on his head that was eight centimeters long and approximately three-eighths of an inch deep; the physician stated that the laceration reached Burt's skull. Chatman and Butler were convicted of, among other charges, aggravated mayhem and torture. On appeal, we reject their contention the court should have sua sponte provided the jury with an instruction that more fully defined the term "disfigure" as it is used in the statute making aggravated mayhem a crime. We also reject their related claims that counsel was ineffective in failing to request an instruction more fully defining the term "disfigure," that the mayhem statute is unconstitutionally vague and that there was insufficient evidence they intended to torture Burt. Because it is predicated on factual issues that are not in the record, on appeal we reject defendants' claim their attorneys provided inadequate assistance in failing to interview the physician who treated Burt and in failing to obtain a defense medical expert. Our disposition on appeal of defendants' inadequacy of counsel claim is without 3 prejudice to the writ of habeas corpus they have filed and for which we have issued an order to show cause returnable in the superior court. FACTUAL AND PROCEDURAL BACKGROUND On the evening of November 8, 2014, Burt, who is an alcoholic and who had been homeless, was in his apartment when Butler and Chatman called him; they told Burt they were coming over because Butler had left a bicycle and a backpack at Burt's apartment. Burt and Butler were friends, and Burt had let Butler and Chatman stay with him from time to time. Shortly after Burt got the call, someone knocked on Burt's door; Burt, who had been drinking very heavily and was in his underwear, opened the door and then turned and walked toward his bedroom so that he could put on a pair of pants. With his back turned and while in the doorway to his bedroom, Burt was knocked to the floor and hit his head on the railing of his bed. Burt climbed up on his bed, and Butler and Chatman began punching him around the head and shoulders. Burt also believed one of the attackers hit him with a golf club. Burt later told police that, at one point during the attack, while Butler and Chatman were holding him on his bed and hitting him, Butler told Chatman to get a knife and then said, "I'm going to scalp this fucking Indian." According to Burt, Chatman retrieved a knife and gave it to Butler who cut a piece of Burt's hair and began cutting, in a sawing motion, at the front of Burt's head. Burt reported that he began bleeding profusely and that Butler and Chatman then fled from his apartment. Burt called 911 and was taken to a hospital, where he was treated initially by emergency room physicians and then a reconstructive surgeon, Dr. Randal Vecchione. 4 At trial, Dr. Vecchione testified that Burt had two wounds on the top left side of his head: one was eight centimeters long and the other was three centimeters long. Both wounds were three-eighths of an inch deep and exposed Burt's skull. Dr. Vecchione further testified that the wounds both required deep sutures near the skull, to prevent the wounds from inverting, as well as superficial sutures. Burt also was treated for broken ribs. Although Butler's counsel engaged in a fairly vigorous cross-examination, Dr. Vecchione, who was not retained by any of the parties as an expert, steadfastly refused to offer an opinion as to whether the head wounds were caused by a sharp object or by blunt force trauma. Shortly after the attack, a police investigator interviewed Butler, who denied cutting Burt with a knife but admitted getting into a fistfight with him. Butler told the investigator he believed Burt had used a date rape drug on Chatman and had raped her while she was unconscious. The investigator testified that Butler's hands were bruised and very swollen at the time of the interview. Burt denied having any sexual relations with Chatman. The jury returned a verdict finding Butler and Chatman guilty of aggravated mayhem (Pen. Code,1 § 205); torture (§ 206); first degree burglary (§§ 459 & 460); mayhem (§ 203); assault with a deadly weapon (§ 245, subd. (a)(1)); and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)). The jury also found true an allegation that Butler had personally used a deadly weapon in the commission of the aggravated mayhem, mayhem, torture and burglary, in violation of section 12022, 1 All further statutory references are to the Penal Code. 5 subdivision (b)(1); and that Butler had personally inflicted great bodily injury in the commission of the mayhem and assault. Butler admitted a prior probation denial and three prior prison terms. (§§ 1203, subd. (e)(4), 667.5, subd. (b) & 668.) The trial court sentenced Chatman to a term of seven years to life and Butler to a term of eight years to life. DISCUSSION I Section 203 states: "Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem." Section 205 in turn states in part: "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." With respect to aggravated mayhem, the trial court instructed the jury with CALCRIM 800, which provides: "To prove that the defendant is guilty of this crime, the People must prove that: "1. The defendant unlawfully and maliciously (disabled or disfigured someone permanently/ [or] deprived someone else of a limb, organ, or part of (his/her) body); "2. When the defendant acted, (he/she) intended to (permanently disable or disfigure the other person/ [or] deprive the other person of a limb, organ, or part of 6 (his/her) body); "AND "3. Under the circumstances, the defendant's act showed extreme indifference to the physical or psychological well-being of the other person. "Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else. "[A disfiguring injury may be permanent even if it can be repaired by medical procedures.] "[The People do not have to prove that the defendant intended to kill.]" Although at trial they did not ask for or offer any clarifying or amplifying instruction, on appeal Chatman and Butler argue that CALCRIM No. 800 is inadequate and defective because it does not fully define the term "disfigure." In particular, they fault the instruction because it fails to spell out the degree or characteristics of disfigurement necessary to warrant a conviction of mayhem. As the People point out, the term "disfigure" is not a technical term that is unfamiliar to juries and requires any further clarification from trial courts. As the court in People v. Newble (1981) 120 Cal.App.3d 444, 452 (Newble) noted, the term has been defined in a popular dictionary as " 'to make less complete, perfect or beautiful in appearance or character.' (Webster's Third New Internat. Dict. (1971) p. 649.)" More recently in People v. Santana (2013) 56 Cal.4th 999, 1004 (Santana), and consistent with Newble, the court stated: " ' "[T]he modern rationale of the crime may be said to be the preservation of the natural completeness and normal appearance of the human face and body, and not, as originally, the preservation of the sovereign's right to the effective 7 military assistance of his subjects." ' " While noting that " 'not every visible scarring wound' may establish mayhem," the court in Santana nonetheless set forth, with approval, examples of the types of disfiguring injuries that have given rise to mayhem convictions: "cigarette burns to both breasts ([People v.] Keenan [(1991)] 227 Cal.App.3d [26,] 29); a breast nearly severed by a box cutter (People v. Pitts (1990) 223 Cal.App.3d 1547, 1559 (Pitts)); a three-inch facial laceration from a fingernail file (People v. Newble, supra, 120 Cal.App.3d at p. 448); forcible tattoos on the breast and abdomen ([People v.] Page [(1980)] 104 Cal.App.3d [569,] 576); and a five-inch facial wound from a knife (Goodman [v. Superior Court (1978)] 84 Cal.App.3d [621,] 623). Other injuries constituting mayhem under section 203 include blinding of an eye from a kick ([People v.] Sekona [(1994)] 27 Cal.App.4th [443,] 457); severe facial trauma requiring metal plates and wires to keep the facial bones together (People v. Hill (1994) 23 Cal.App.4th 1566, 1570 (Hill)); a bitten-through lower lip (People v. Caldwell (1984) 153 Cal.App.3d 947, 952); a broken ankle that had not completely healed after six months (People v. Thomas (1979) 96 Cal.App.3d 507, 512 (Thomas)); and an eye 'put out' by a machete (People v. Green [(1976)] 59 Cal.App.3d [1,] 4)." The wide variety of serious injuries set forth by the court in Santana amply illustrate the ability of jurors to distinguish between the grave nature of the disfigurement proscribed by sections 203 and 205 and mere blemishes or minor but visible scars that would not support a conviction. Thus, contrary to defendants' contention, there was no basis upon which the trial court was required to sua sponte offer an instruction clarifying such a commonly understood term. (See People v. Estrada (1995) 11 Cal.4th 568, 574.) The common understanding of the term "disfigure" also largely disposes of 8 Chatman and Butler's other related arguments. First, given the common understanding and nontechnical nature of the term, as well as the severe characteristics of Burt's injuries, we find nothing ineffective in counsels' failure to object to CALCRIM No. 800 on the grounds that the instruction does not set forth the degree or characteristics of disfigurement necessary to warrant a conviction. In a case in which the victim had an eight-centimeter (almost three inches) gash on his head—which was three-eighths of an inch deep and required both deep sutures and superficial sutures—as well as a smaller second wound, and given the common understanding of the term "disfigure," it was simply not realistic for counsel to argue, either to the trial court or the jury, that the wound Burt suffered was not serious enough to meet whatever unstated standard Chatman and Butler now believe is required. Under these circumstances, counsels' failure to raise an objection on the grounds now asserted on appeal does not demonstrate inadequacy but rather a clear and reasonable tactical choice to preserve their own credibility. (See People v. Wright (1990) 52 Cal.3d 367, 408 [counsel may properly make tactical choice to preserve counsel's credibility].) It is of course axiomatic that such tactical choices will not support a claim of inadequate assistance. (See People v. Frye (1998) 18 Cal.4th 894, 979–980.) The common understanding of the term of "disfigure" and the nature of Burt's injuries also defeat defendants' contention the term, as used in the mayhem statute, is unconstitutionally vague. " 'Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible. [Citations.] A statute will not be declared void as indefinite if it contains a reasonably adequate disclosure of the legislative intent regarding an evil to be combated in language 9 giving fair notice of the practices to be avoided." (Newble, supra, 120 Cal.App.3d at p. 452, italics added;2 see Williams v. Garcetti (1993) 5 Cal.4th 561, 568.) With respect to mayhem, the court in Newble—where the defendant had slashed the victim's face with a fingernail file leaving a three-inch long, half-inch deep wound from her ear to her chin—stated: "[T]he meaning of 'disfigure' in the context of section 203 is sufficiently definite and certain to inform a person of ordinary intelligence what acts are prohibited. As to defendant, section 203 is sufficiently certain to put him on notice that slashing the victim's face with a sharp instrument so as to leave a permanent three-inch scar could reasonably be found to be disfigurement." (Newble, at p. 453.) Much the same is of course true here: the term disfigure as used in section 203 was more than adequate to give Chatman and Butler notice that using a knife to begin cutting away the victim's scalp and leaving a nearly three-inch long, three-eighths-of-an-inch deep wound on his head was mayhem.3 II Section 206 states: "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 2 Contrary to Chatman's suggestion, nothing in Johnson v. United States (2015) ___ U.S.___ [135 S.Ct. 2551] undermines the principle set forth in Newble that a statute that gives a defendant fair notice of the conduct proscribed meets the requirements of due process or the Newble court's determination that our mayhem statute meets that standard in a case, like this, where the victim endured a severe three-inch gash on his skull. 3 We also agree with the People that, in any event, by failing to object to CALCRIM No. 800, Chatman and Butler forfeited their right to raise the issue on appeal. (See People v. Guiuan (1998) 18 Cal.4th 558, 570.) 10 another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain." As the People point out, torture requires proof of two elements: (1) the infliction of great bodily injury and (2) the specific intent to cause cruel or extreme pain and suffering for revenge, extortion or persuasion or any sadistic purpose. (People v. Burton (2006) 143 Cal.App.4th 447, 452.) As we have indicated, Burt testified he opened his door to Chatman and Butler, turned to go back in his bedroom and then, while his back was turned, he was attacked, thrown to the floor, beaten with fists and a golf club, and, while being held down on his bed by both defendants, subjected to an attempt to literally remove the scalp from his head. Contrary to their argument on appeal, Burt's testimony was sufficient to support their conviction of torture. First of all, we reject defendants' argument that Burt's credibility was so thoroughly impeached that the jury had no basis upon which to believe his version of events. Determinations of credibility are exclusively the province of the jury. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 111.) Unless a witness's testimony is "physically impossible or inherently improbable, [the] testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) Here, the physical evidence, including in particular the deep wounds in Burt's head and the broken ribs he suffered, fully corroborated Burt's testimony he was the victim of a fairly severe beating. Moreover, the bruising and swelling detectives observed on Butler's hands, his concession he had been in a fight with Burt and his stated belief Burt had raped Chatman fully support Burt's testimony the beating he received was quite literally at the hands of Chatman and Butler. Thus, the only aspect of Burt's testimony 11 that defendants can arguably challenge is Burt's accusation that, with Chatman's help, Butler attempted to scalp him.Because so much of the rest of Burt's recapitulation of events could be corroborated, the jury could quite reasonably credit Burt's testimony that the deep gashes in his head were the result of an attempted scalping. Of course, the three-inch wound itself was perhaps the most powerful corroboration of Burt's statements. Thus, in determining whether to credit Burt's version of events, the jury could reasonably disregard his admitted alcoholism, his drinking the night of the attack, the inability of police detectives to find a knife in or near Burt's apartment and the fact Burt made no accusation of scalping until he reached the hospital. We also reject defendants' contention there was insufficient proof they intended to inflict the extreme pain and suffering needed to establish torture. While the People concede, and we agree, that many cases of torture involve more horrific acts and more severe injuries (see, e.g., People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430; People v. Pre (2004) 117 Cal.App.4th 413, 419-420; People v. Misa (2006) 140 Cal.App.4th 837, 843; People v. Baker (2002) 98 Cal.App.4th 1217, 1223; People v. Burton, supra, 143 Cal.App.4th at p. 452), a jury could quite reasonably conclude defendants' attempt to lift the skin off of Burt's skull, after severely beating him in what was nothing short of an ambush, as a means of exacting retribution for an alleged sexual assault, was performed with an intent to inflict severe pain and suffering. As the court in People v. Jung (1999) 71 Cal.App.4th 1036 stated: "That other victims of torture may have suffered more than the victim in this case sheds no light on the sufficiency of the evidence of defendants' intent to cause [this victim] severe pain and suffering." (Id. at p. 1043.) 12In sum, the evidence in this record was sufficient to support defendants' torture convictions. III Relying on their contention that their attorneys did not attempt to interview Dr. Vecchione before trial or obtain a medical expert who might have supported the theory that the head wounds Burt suffered were from blunt force trauma, rather than an attempt to scalp him with a knife, defendants argue they received ineffective assistance of counsel. The validly of these contentions depend on factual matters outside the record on appeal, including, in particular, whether the deficiencies they assert in fact occurred and, if they occurred, whether they occurred for any tactical or other reason. Thus, while we reject their claims of ineffective assistance on appeal, we do so without prejudice to their right to raise those claims by way of the joint writ of habeas corpus defendants have filed, which we have considered with their appeals and for which we have issued an order to show cause returnable in the superior court.4 4 We also deny without prejudice Butler's related request for judicial notice. 13 DISPOSITION The judgments of conviction are affirmed. BENKE, Acting P. J. WE CONCUR: NARES, J. O'ROURKE, J.