Opinion Bank # O-217
NOTE: The text of the footnotes appears at the end of the document.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Plaintiff and Respondent, A068317
(San Mateo County Super. Ct.
MICHAEL MARCUS HERMAN,
Defendant and Appellant.
Defendant shot and severely wounded Curtis Rucker on August 15, 1992. A jury subsequently convicted defendant of attempted murder, aggravated mayhem, assault with a firearm, and related enhancements. Defendant pled no contest to two misdemeanor charges.
Defendant raises the following trial errors on appeal: (1) the specific intent element of aggravated mayhem was not supported by substantial evidence; (2) the jury instructions on the intent element of aggravated mayhem were contradictory; (3) defense counsel provided ineffective assistance by failing to address the aggravated mayhem charge in his closing argument; (4) the trial court abused its discretion by failing to grant a continuance in order to secure the attendance of friend Wayne’s house. With Wayne’s encouragement, defendant called 911 and told the operator what had happened.
A. Intent to Commit Aggravated Mayhem
The jury found that defendant committed aggravated mayhem when he fired a bullet into Rocker’s abdomen. [Footnote 1] Aggravated mayhem is defined in section 205 as follows: “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. For purposes of this section it is not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole.” Defendant contends that (1) the evidence was insufficient to support the specific intent element of the offense; (2) the jury was improperly instructed on the specific intent element of the offense; and (3) counsel rendered ineffective assistance by failing to address the specific intent element of the offense in his closing argument. Because we conclude that defendant’s first contention has merit, we do not address the latter two contentions.
As defendant correctly argues, “acgravated mayhem is a specific intent offense, the specific intent to cause the maiming injury being an element of the crime. [Citation.]” (People v. Lee (1990) 220 Cal.App.3d 320, 324-325.) Such intent “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.” (People v. Ferrell (1990) 2l8 Cal.App.3d 828, 835.) However, circumstantial evidence of defendant’s state of mind is sufficient to support a conviction. (Id. at p. 834, citing People v. Bloom (1989) 48 Cal.3d 1194, 1208.) Thus, a jury may infer the requisite specific intent from “the circumstances attending the act, the manner in which it is done, and the means used, among other factors.” (Ibid., citing People v. Miller (1977) 18 Cal.3 d 873, 884.)
‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]'” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, quoting People v. Jones (1990) 51 Cal.3d 294, 314.)
The crime of aggravated mayhem is relatively new and few decisions specifically address the intent element of the crime. Our inquiry, however, is illuminated by two decisions: People v. Ferrell, supra, 218 Cal.App.3d at pp. 832-836 and People v. Lee, supra, 220 Cal.App.3d at pp. 324-327. In Ferrell, the defendant sought out the victim, Tabatha Perreira, in her apartment. The defendant entered the apartment and yanked the telephone out of the victim’s hand. When Perreira’s father moved to intercede, defendant calmly and deliberately shot him in the knee. She then quickly turned and shot Perreira once in the neck from a distance of about two feet. In affirming defendant’s aggravated mayhem conviction, the court wrote: “Once Perreira was down, [defendant] did not fire additional shots at her, to make certain that she was dead; instead, [defendant] was apparently satisfied with the result of her single shot. It takes no special expertise to know that a shot in the neck from close range, if not fatal, is highly likely to disable permanently. [Defendant’s] shooting of Perreira was not an indiscriminate, random attack on her body; instead, the shooting was directed and controlled. From all this evidence, the jury could reasonably have inferred that [defendant] intended both to kill Perreira, and, if she did not die, to disable her permanently.” (People v. Ferrell, supra, 218 Cal.App.3d at pp. 85-386.)
Two months later, the same court, in People v. Lee, supra, 220 Cal.App.3d 320, found insufficient evidence of specific intent to permanently disable the victim, Wing Sak Chu. In contrasting the case with Ferrell and reversing the conviction, the court wrote: “Defendant here did not shoot or stab his victim; instead, he used his fists and his feet. Defendant punched his victim in the face three times. Defendant also kicked his victim at least twice somewhere on his body, but there was no evidence that the kicks were to his head. The evidence shows no more than a sudden, indiscriminate, and unfocused battering of Chu’s body. While this evidence undoubtedly shows extreme indifference to Chu’s physical well-being, it does not show a controlled, directed, limited attack similar to that in either [People v. Campbell (1987) 193 Cal.App.3d 1653 [Footnote 2]] or Ferrell, from which a jury could reasonably have inferred that defendant specifically intended to disable Chu permanently.” (People v. Lee, supra, 220 Cal.App.3d at p. 326.)
While the facts of this case significantly differ from those found in both Ferrell and Lee, we believe that it is plain that the record is devoid of evidence other than the nature of the injury itself to support an inference that defendant specifically intended to deprive Rucker of an internal organ or possessed a dual intent to either kill or maim. As previously noted, other facts and circumstances in addition to the nature of the injury are necessary in order to support a finding of the requisite specific intent. (People v. Ferrell, supra, 218 Cal.App.3d at p. 835.)
In Ferrell, the court found the necessary additional support in the facts that the injury in question was immediately preceded by a maiming-type injury to another person and that the defendant fired only a single shot and did not fire again to insure that the victim died. No such support is found in the present record.
Significantly, the jury concluded that, immediately after the shot to the abdomen, defendant fired a second shot at Rucker’s head, a different part of his bodv, with the intent to kill him.
Moreover, contrary to the Attorney General’s argument, we are not persuaded that the facts that the attack was perpetrated with a gun and that defendant placed the shot at point blank range on a spot on the torso are sufficient to support the inference of the specific intent to maim. In order to reach the result advocated by the Attorney General based simply on such facts, unsupported and unreasonable assumptions regarding the defendant’s anatomical knowledge and accuracy of aim are required. We conclude that no reasonable inferences drawn from the circumstances surrounding this attack support the existence of an intent to actually deprive Rucker of an organ or permanently disable him as opposed to an intent to kill or simplv “indiscriminately attack” him.
Accordingly, we are compelled to reverse defendant’s conviction for aggravated mayhem.
Having reached this point, our inquiry does not end. Our holding that defendant lacked the specific intent necessary to convict him for aggravated mayhem does not eliminate the crime of simple mayhem (§ 203) which was given to the jury as a lesser included offense. Unlike aggravated mayhem, simple mayhem is a general intent crime. (E.g., People v. Sekona (1994) 27 Cal.App.4th 443.) Based upon its verdicts, the jury rejected defendant’s defense that the shot in question was accidental and found that defendant intended to cause great bodily injury to Rucker with that shot. Furthermore, it is not disputed that, as a result of the shot, Rucker lost a kidney and gall bladder.
“We are authorized under Penal Code section 1181, subdivision 6, to reduce a conviction to the lesser offense where the evidence shows the defendant is not guilty of the greater offense but is in fact guilty of a lesser offense. [Citation.]” (People v. Daly (1992) 8 Cal.App.4th 47, 57; see also § 1260.) In this case, we conclude that the evidence shows that defendant is guilty of simple mayhem. Therefore, the conviction on count 2 must be modified to reflect the offense of simple mayhem as set forth in section 203 and the sentence modified accordingly.
Because the sentence imposed on count 2 served as the base term for defendant’s sentence, we will remand to the trial court for resentencing in order that the trial court may exercise its sentencing discretion in light of the modification to the conviction on this count that we order.
The parties agree that the jury’s finding not true the great bodily injury allegation accompanying the attempted murder count, while finding true the same allegation accompanying the assault with a firearm count, strongly suggests that the jury based the aggravated mayhem conviction on the first shot to the abdomen and the attempted murder conviction on the second shot to the shoulder area.
This decision was a felony murder case in which simple mayhem (§ 203) was the underlying felony. In that case, the defendant inflicted about 25 small punctures on the left side of the victim’s face, probably with a screwdriver. In addition, defendant fractured the right side of the victim’s face and head and extensively tore her right ear, probably using a brick. (People v. Campbell, supra, 193 Cal.App.3d at pp. 1660-1661, 1668.) In holding that substantial evidence supported a finding of specific intent to maim the victim, the court wrote: “The attack was focused on Pekny’s face and head. The facts indicate Campbell limited the amount of force he used with the screwdriver rather than stabbing with his full force, and limited the scope of the attack with the brick to the head and face, rather than randomly attacking Pekny’s body. The controlled and directed nature of the attack supports an inference Campbell intended to disfigure Pekny’s face, including her right ear.” (Id. at pp. 1668-1669.)