Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS073199A
Bamattre-Manoukian, ACTING P.J.
Defendant Aniano Olea was convicted after jury trial of 11 counts of inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a)), four counts of making criminal threats (§ 422), two counts of torture (§ 206), two counts of aggravated mayhem (§ 205), and one count each of assault with a deadly weapon (§ 245, subd. (a)(1)), dissuading a witness (§ 136.1, subd. (a)(1)), stalking (§ 646.9, subd. (a)), mayhem (§ 203), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and possession of ammunition by a felon (§ 12316, subd. (a)(1)). The jury further found true an allegation that defendant personally inflicted great bodily injury during the commission of one of the infliction-of-corporal-injury offenses. (§ 12022.7, subd. (e).) The trial court sentenced defendant to four consecutive indeterminate terms of seven years to life, consecutive to the determinate term of 20 years.
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that he was denied his constitutional right to a fair trial when the trial court discharged a juror, over his objection, during jury deliberations. Defendant also contends that there is insufficient evidence to support his convictions for aggravated mayhem. As we disagree with defendant’s contentions, we will affirm the judgment.
PROCEDURAL HISTORY
Defendant was charged by second amended information with five counts of torture (§ 206; counts 1, 5, 12, 23 & 28), four counts of aggravated mayhem (§ 205; counts 2, 6, 13 & 24), 11 counts of inflicting corporal injury on his spouse (§ 273.5, subd. (a); counts 4, 11, 15, 16, 17, 20, 27, 29, 31, 32 & 33), five counts of mayhem (§ 203; count 3, 7, 14, 25 & 26), four counts of making criminal threats (§ 422; counts 8, 10, 18 & 19), and one count each of assault with a deadly weapon (§ 245, subd. (a)(1); count 9), dissuading a witness (§ 136.1, subd. (a)(1); count 21), stalking (§ 646.9, subd. (a); count 22), false imprisonment with violence (§ 237, subd. (a); count 30), possession of a firearm by a felon (§ 12021, subd. (a)(1); count 34), and possession of ammunition by a felon (§ 12316, subd. (b)(1); count 35). The information further alleged that defendant personally inflicted great bodily injury upon the victim during the offense in count 4 (§ 12022.7, subd. (e)), and that defendant had one prior strike (§ 1170.12, subd. (c)(1)). Defendant’s spouse was the victim of most of the offenses, but one of the criminal threats counts related to a threat he made to his spouse regarding their daughter.
Jury trial began on Monday, February 9, 2009, with motions in limine and the beginning of jury voir dire. Testimony began on Wednesday, February 11, 2009, and continued until Thursday, February 26, 2009. After both sides rested, the court granted defendant’s motion to dismiss counts 5 through 7 pursuant to section 1118.1. The prosecutor dismissed counts 2, 3, 12, 14, 23, 25 and 30. The remaining 25 counts were renumbered, listed on the verdict forms, and submitted to the jury on Monday, March 2, 2009. On the morning of Friday, March 6, 2009, the court dismissed Juror No. 10 over defendant’s objection, denied defendant’s motion for a mistrial, and replaced Juror No. 10 with an alternate juror. The jury retired to begin deliberations anew. On the afternoon of Monday, March 9, 2009, defendant waived a jury trial on the strike allegation and the jury returned with its verdicts. The jury found defendant guilty of all 25 remaining counts, and found true the allegation as to count 2 that defendant personally inflicted great bodily injury while inflicting corporal injury on his spouse. On May 15, 2009, the court found the prior strike allegation to be not true.
On June 2, 2009, the court sentenced defendant to four consecutive indeterminate terms of seven years to life, consecutive to the determinate term of 20 years. The indeterminate terms were ordered on counts 1 (torture), 7 (aggravated mayhem), 16 (aggravated mayhem), and 19 (torture). The determinate term consists of consecutive terms of four years on count 17 (mayhem), eight months on count 3 (criminal threats), one year on count 4 (assault with a deadly weapon), eight months on count 5 (criminal threats), one year on count 6 (corporal injury), one year on count 8, one year on count 9 (corporal injury), one year on count 10 (corporal injury), eight months on count 12 (criminal threats), one year on count 13 (corporal injury), two years on count 14 (dissuading a witness), eight months on count 15 (stalking), one year on count 18 (corporal injury), one year on count 21 (corporal injury), one year on count 22 (corporal injury), one year on count 23 (corporal injury), eight months on count 24 (weapon possession), and eight months on count 25 (ammunition possession). The court stayed the sentences on counts 2, 11, and 20 pursuant to section 654.
FACTS
Defendant and his spouse met in early 1986 when she was pregnant with her older daughter, and they married in 1989. They lived in a rural part of Monterey County and had a daughter together in 1993. Defendant was abusive toward his spouse from the beginning of their relationship. He constantly questioned her about her conversations with others and about her past sexual history, and he constantly hit her with his hands and with items such as a belt, a mallet, or a baseball bat. The physical abuse caused bruising, swelling, scratch marks, a concussion, and, at one time, a torn ACL. Defendant also burned the side of his spouse’s face with hot barbeque tongs. He admitted that he put a GPS device on her car so that he could track her whereabouts. His spouse attempted suicide once by taking an overdose of pills in September 2006.
Defendant learned about tattooing as a teenager, and his spouse willingly allowed defendant to put “dozens of tattoos” on her body. However, she testified that she told him that she did not want some of the tattoos he gave her. The unwanted tatoos were the subject of the mayhem counts alleged against defendant.
DISCUSSION
Dismissal of Juror
At the start of voir dire on Monday, February 9, 2009, the court informed the prospective jurors that defendant was “charged with serious acts of domestic violence over a period of some years involving the complainant, ” defendant’s spouse. Before giving each of the prospective jurors a written questionnaire, the court stated in part: “[T]he charges in this case include mayhem, ... The charges include torture, they include various acts of domestic violence, and they’re serious charges. [¶] Now, if one were to come to court with the attitude – let’s say this is a murder case, which it isn’t, but let’s say it is and you come to court with the attitude that I have very strong feelings about murder, I don’t like the idea of somebody taking somebody’s else’s life, and once I find out that the charge is murder and somebody is charged with it, that’s about all I need to know, and my vote is pretty much going to be guilty right from the start because of the nature of the charges. [¶] Somebody else might come into criminal court with a completely different attitude. That attitude may be, I am very sympathetic, I feel a very deep sympathy for someone charged with a serious criminal offense; boy, I’d hate to be there and in that situation myself, and in addition to that, I don’t care much for the police, and my vote is pretty much made up once I find out this is a criminal case, I’m voting not guilty. [¶] Neither of those people can be a fair and impartial juror.”
“Now, we’re going to be giving you, as I said, questionnaires which cover the subject of your personal experience.... You’ll be able to answer the question as to whether or not the subject matter of this case is such that you could not be fair and impartial in private. Your written answer will be private. And there are obviously infinite possibilities with respect to people’s personal experience. [¶] If, for instance, you have been the victim of domestic violence, and let’s say that it was a huge trauma in your life and it was very recent and it’s a very emotional subject with you and it’s one that you just don’t think you could be a fair and impartial juror in a domestic violence type case, that’s going to be something – that situation that I’ve outlined would mean you would be excused from this case. [¶] If your cousin’s best friend was a victim of lightweight domestic violence 15 years ago, that’s probably not going to be an issue that should cause you that kind of emotional hardship that would mean your removal from the case would be mandated. And there are all possibilities in between, of course. [¶] So, if you feel that the nature of the case is such that just the nature of the case keeps you from being able to be a fair and impartial juror, even understanding what I told you about the function of a juror and what jurors – how jurors are supposed to approach the task, then be sure to explain on your form what your reasons are.”
The written questionnaire given to the prospective jurors stated in part: “This case involves charges of serious domestic violence. If you feel that the subject matter of the case is such that you could not be a fair and impartial juror, please check the yes answer below and explain your reasons in the space provided. You may also use the back of this form if necessary. If you have no problem being a juror in this case, please check the No answer below.” Juror No. 10 checked the No answer. After all completed questionnaires were turned in to the court that afternoon, some jurors were excused for cause or hardship.
On the morning of February 10, 2009, the court asked all remaining prospective jurors: “So, I wanted to ask all of you, this is a criminal case where someone is charged with committing acts of violence in the domestic setting. I need to know whether any of you –I’ll give you a couple of categories here: Whether any of you personally or anyone close to you has ever been arrested for or charged with a crime of violence of any kind. Anybody have that sort of experience where either you’ve been arrested for a crime of violence or you know somebody well, a close friend or relative who has been?” One prospective juror who said that she witnessed domestic violence within her family10 years before was excused. After other prospective jurors were excused, Juror No. 10 was called into the juror box and was asked, “Do you understand the questions asked and answers given so far?” Juror No. 10 answered yes. The court asked, “Any problems raised for you so far?” Juror No. 10 responded no. The court asked, “Do you agree to follow the law as I instruct you?” Juror No. 10 answered yes. The court asked, “And the subject matter of the case, you don’t have any particular connection with.” Juror No. 10 shook her head from side to side. Later, the court asked the prospective panel members whether they were married or divorced. Juror No. 10 responded, “Single.” When the court asked the panel members their occupation and the occupation of their partner if any, Juror No. 10 responded, “I’m a single parent.” When the panel members were asked about their children, Juror No. 10 responded, “ I have three adult kids.” “My oldest is a waitress. My son is going to try to get his GED, and my youngest is 19. She works in fast food.” She also stated that her 19-year-old daughter lived at home with her. Juror No. 10 was sworn in as a member of the jury panel on the afternoon of Tuesday, February 10, 2009.
Jury deliberations began at 10:30 a.m. on Monday, March 2, 2009. After the lunch recess, with the agreement of counsel, the court answered some questions that the jury had submitted and sent the court reporter into the jury room to read back requested testimony. The court reporter read back additional testimony the morning and afternoon of Tuesday, March 3, 2009. Also in the afternoon, the court answered more questions that the jury had submitted. On the morning of Wednesday, March 4, 2009, the court answered additional questions and the court reporter read back additional testimony. At 2:05 p.m., the court received a note from Juror Nos. 6 and 10 expressing “their desire to be excused from deliberations, both using the same language.” The jury was brought into the courtroom and stated that they were familiar with the contents of the note. The court instructed Juror No. 10 to remain in the courtroom, Juror No. 6 to remain in the jury room, and the remainder of the jury to take a break from deliberations.
The court asked Juror No. 10 why she wanted to be excused. Juror No. 10 responded, “When I make a decision, I feel that I have to make a different decision to give satisfaction to the jurors.” “And I’m very uncomfortable for the fact because of my decision. They’re just really focused on what I’m saying and – ” The court asked the juror whether she was saying that she could not “continue to consider the evidence any further.” The juror responded, “No, I can. But, because of my decision that I make, it’s bringing a lot of – other jurors think that I’m not understanding what I’m doing, that I need to focus on what my decisions are, and I’m thinking that I must make a different judgment.” “[T]hey’re not complying of [sic] my decision. They’re asking me why, can I change my decision, is there anything we can present to change your mind. And I was hoping that we could just go on to the next one, and it’s not happening.” The juror stated that this was true of “some” counts. Because the juror stated that she was listening to what the other jurors had to say and that she was able to consider the evidence and the law, the court told her that she would not be excused, and that she could go back to deliberating.
The court called Juror No. 6 into the courtroom and asked him why he wanted to be excused. The juror responded that, “For one thing, this thing drug out too long, because I do have my job obligations....” “And with the way things are going there, it seems to be dragging on forever, going around loops, and it just doesn’t feel like we’re making any meaningful progress. It’s around and around.... [¶] And also, on top of that, Number 10 proposed her excuse request first, so, I thought, if she quit, then this whole thing going to start all over, which is even more of a nightmare situation.” The court told the juror that Juror No. 10 was not excused, and that “there are things individual jurors can suggest to move things along.” Juror No. 6 stated: “I said, we should just vote and just get it over with, instead of going around and around and around. If there’s any dissenting voice, somebody suggests we should read all the script all over again. So, we went through all three weeks or four weeks of worth of listening to the same thing. I can almost memorize the whole thing, so, what’s the point. [¶] Just because there is dissenting voice, some just pressure the whole group to....” “[W]e have one like dissenting voice and everybody seems to be just grinding on her, saying, what is your rationale behind this, how come you believe in this. [¶] And I just feel like, if this is the case, you know, one party is never going to change her mind, then everybody just won’t give up, ... we’ve been at this for two days already, ...” “Instead of everybody voluntarily coming to their conclusion based on their own understanding and investigation, this is more like a group of people trying to pressure and impose their will and opinion and trying to force a consensus.” Because Juror No. 6 stated that he had been participating and it appeared to the court that the jury was not “at a permanent standstill, ” the court told the juror that he would not be excused.
Forty-five minutes after the jury returned to its deliberations, the jury foreperson sent a note asking to speak to the court. The court brought the jury back into the courtroom, told the jury to take another break from deliberations, and had the jury foreperson remain. The foreperson told the court: “I’m speaking on behalf of the other jurors. They all felt, all 11 felt that this is a foreperson conversation, that I should come forward to speak with the judge. [¶] We do have a juror who is not understanding, one, the deliberation process, and we’ve gone over the instructions over and over again, and is still not upholding or, you know, participating in the deliberations process. [¶] And that same juror, the concerns – and I think the biggest concerns that we have is that there’s some outside stuff that’s being brought into some of the reasoning behind decisions.” “Such as adding to the evidence....” “In other words, the character of [defendant’s spouse], her character, things that have not even been said during the trial period, she is adding to, or this particular juror is adding to her – like she’s – she’s saying that we don’t know, she’s this and she’s that and she’s the other thing, and the rest of the juror members are saying, where is this coming from? That isn’t part of – you know, that isn’t part of what evidence was brought forward. [¶] And we’re only to look at the evidence to come to a decision. And she just keeps going back to that....” The court asked if the foreperson was talking about Juror No. 10, and the foreperson responded affirmatively. “I mean, we’ve had discussions with her. She’s feeling that she can’t not do that. She can’t not bring the other stuff in, the way that she feels about this, about [defendant’s spouse].... [W]e’re constantly going through and asking her to just look – our instructions are just to look at the evidence that’s been brought forward and not assume that she’s done these other things or that these other things have happened.” When the court asked the foreperson to be specific, the foreperson responded: “She’ll say things like, we don’t know that” defendant’s spouse is not wanting to leave defendant to be with another man. “And that’s not even a consideration of the count or any of the counts that we’re even looking at, is her relationship or what she’s doing right now with” the other man. “I’m trying to – we’re trying to keep her on track with – and that’s why we’re having to have a lot of the read backs, is because she’s hearing one thing, and it’s not there. It’s just not there. It’s not in any of the evidence. And that’s a concern to us. That’s a concern to everyone. We’re extremely frustrated.” “[S]he is saying that she, [defendant’s wife] wants the tattoo, and after all the read backs and evidence, there was never, yes, I do want it. Yes, I do want you to tattoo my back.... She’s adding to what’s there.” “She doesn’t want to be part of the deliberations because she doesn’t feel that she cannot, not do that. And it’s making everyone else really uncomfortable moving forward.”
The court stated that it had not heard a reason to remove Juror No. 10 from deliberations. The foreperson then stated that other jurors have signed a petition to have juror No. 10 removed. The court told the foreperson to return to the jury room so that it could discuss the matter with the parties. After discussing the matter off the record in chambers, the court stated on the record that “[w]e have all agreed upon the reading of an additional instruction to the jury which I will now do.” After hearing the instruction, the jury returned to the jury room and deliberated for 46 minutes before being excused for the evening.
The court instructed the jury as follows: “Ladies and gentlemen, the trial of this case took many days. There was a massive amount of evidence, both oral and documentary, presented to you. Both the evidence and the issues presented are complex. It is not unexpected therefore that it would be a difficult and time-consuming task for you to arrive at verdicts on any or all of the counts. [¶] Some of you may be concerned about the length of time your deliberations are taking and that you are inconveniencing the Court, counsel, your fellow jurors or your employers. [¶] If you have such concerns, it is your duty to disregard them just as it is your duty to disregard such factors as sympathy, prejudice or public opinion. [¶] Your goal as jurors should be to reach fair and impartial verdicts on any or all of the counts before you based solely upon the evidence presented and without regard for the consequences of your verdicts, regardless of how long it takes to do so. [¶] However, it is also true that it is sometimes the case that a jury is unable to reach a verdict on a count or counts. And if it comes to the point where the jury or members thereof believe that a verdict cannot be reached on a certain count or counts, then the jury should let the Court know that that’s the situation. In other words, the process is not endless. [¶] It is your duty as jurors to carefully consider, weigh and evaluate all of the evidence presented at trial, to discuss your views regarding that evidence and to listen to and consider the views of your fellow jurors. [¶] In the course of your further deliberations, you should not hesitate to re-examine your own views or to request your fellow jurors to re-examine theirs. [¶] You should not hesitate to change a view you once held if you were convinced that it’s wrong or to suggest to other jurors that they change their views if you’re convinced that they are wrong. Fair and effective jury deliberations require a frank and forthright exchange of views. [¶] Although each of you must decide the case for yourself, you should do so after only a full and complete consideration of all the evidence with your fellow jurors. [¶] It is your duty as jurors to deliberate with the goal of arriving at verdicts on any or all of the counts before you if you can do so without doing violence to your individual judgment. [¶] Both the People and the Defendant are entitled to the individual judgment of each juror. As I have previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate. May I suggest, however, that since you have not been able to arrive at verdicts using the methods you have chosen, that you consider changing some of the methods that you have been following at least temporarily, and perhaps try some new methods. [¶] For example, you may wish to consider having different jurors lead the discussions for a period of time, or you may wish to experiment with reverse role-playing by having those on one side of an issue present and argue the other person’s side, and vice versa. This might enable each of you to better understand each other’s positions. [¶] By suggesting you might consider changes in your methods of deliberations, I want to stress, I am not dictating or instructing to you as to how to conduct your deliberations. I merely believe you may find it productive to do whatever is necessary to ensure that each juror has a full and fair opportunity to express his or her views and to consider and understand the views of the other jurors. [¶] You may also wish to reread instructions which pertain to your duties as jurors. [¶] If you desire any change in your accommodations or your schedule, please let me know. For example, if you find the jury room to be too confining or stuffy and would prefer to deliberate in a larger room, I can make arrangements for you to do so. [¶] I realize jury deliberations are difficult, demanding and stressful. I am prepared to do whatever I can to help alleviate that stress. [¶] I hope these comments and suggestions may be of some assistance to you. You are now directed to resume deliberations. Okay? Before you leave, ... there has been presented a note to the effect that ten of the jurors would like to address the Court. [¶] If you wish to do that, any of you who do, please do so in writing and be as specific as you can with any statements that you would like to make. Okay?”
The jury resumed deliberations on the morning of Thursday March 5, 2009. At 2:30 p.m., the court received seven notes from jurors. Nothing occurred on the record, and the jury was excused for the evening at 3:00 p.m. On the morning of Friday, March 6, 2009, the court stated on the record that Juror No. 10 had submitted a second request to be removed from the jury and other jurors had submitted notes “complaining about her, but the main subject of today’s inquiry is information that has come to the Court’s attention concerning her background with respect to domestic violence, and it appears that a hearing is in order....” The prosecutor had filed a memorandum stating that Juror No. 10 “has been a victim of domestic violence and failed to disclose such in jury voir dire, ” and that several jurors had submitted notes indicating their belief that Juror No. 10 “is not following the instructions, is unable to deliberate properly and has multiple times detailed her personal experience in a domestic violence relationship and the effects on her personally.” Correctional officers had recognized the juror, so a district attorney investigator did a computer search and found that the juror had a criminal record from 1998, and that she had once been a witness to and twice a victim of domestic violence.
After Juror No. 10 entered the courtroom, the court acknowledged the juror’s note and stated, “I wanted to ask you whether in your view of the difficulties that seem to be occurring with respect to you and the other jurors have anything to do with your own personal experiences.” The juror responded, “No, ” and said that she still felt as though she was “being pressured into changing my opinion on it.” The following then occurred:
“THE COURT: I wanted to know whether any of your personal experiences outside of court are having any effect on the way you are dealing with this whole problem.
“JUROR NO. 10: No.
“THE COURT: Have you had any experience with respect to domestic violence in the past, yourself?
“JUROR NO. 10: No.
“THE COURT: Nothing that would cause you to favor one side or the other in the case?
“JUROR NO. 10: No.
“THE COURT: Another one of the questions we asked in voir dire was whether anybody has been convicted of anything. Have you ever been convicted of anything?
“JUROR NO. 10: No.
“THE COURT: Now, it’s come to the Court’s attention that there was some episodes back in the ‘90s where you made some complaints about domestic violence where the police had to come out, and you complained about a fellow by the name of Mr. M[.]
“JUROR NO. 10: M[.]?
“THE COURT: M[.]
“JUROR NO. 10: The thing that happened was with my son. My son, they got them confused. And I kept on telling the officer, M[.], who you guys are talking about, M[.], it was a problem that I had with the caretaker where I lived where I got kicked out of housing authority.
“THE COURT: You didn’t make a complaint to the police or tell the police that you had been struck by Mr. M[.]?
“JUROR NO. 10: No. Mr. M[.] was my son. And they had said, well, who is Mr. M[.]? Well, isn’t that kid that was here. [¶] No, that’s my son. The caretaker in charge of the housing authority, he’s the manager there, and she said that she was – how is my son going to be hitting me? She didn’t like my son and there was a conflict we had, and I ended up getting kicked out of the
“THE COURT: The reports that have been provided to the Court seem to indicate that you made complaints
“JUROR NO. 10: I made complaints with Mr. M[.]?
“THE COURT: That a man named M[.] had beaten you up.
“JUROR NO. 10: I haven’t been stricken by no guys.
“THE COURT: Knocked you to the floor, hit you in the face. Also, a man named J[.].
“[THE PROSECUTOR]: Actually, that’s where she was a witness. The full name would be M[.] L[.] M[.]
“THE COURT: M[.] L[.] M[.]
“JUROR NO. 10: That’s my daughter’s father, and he’s been in Mexico. When my dad passed away, I sent him to Mexico, in Jalisco.
“THE COURT: And what is your full name?
“JUROR NO. 10: My name is [...].
[THE PROSECUTOR]: And your date of birth?
“JUROR NO. 10: [-/-/-]. And M[.] M[.] is my daughter’s father.
“THE COURT: Well, I’m going to show you a report from December of 1993 and ask you to read that to yourself. It’s just two pages.
“JUROR NO. 10: I remember that day. He jumped out the window that day. He jumped out the window and the neighbors had to call the cops because he jumped out the window, so we were fighting and everything. He just jumped out the window. But, it wasn’t a domestic violence. He was trying to be super mosquito. They called him mosquito.
“THE COURT: Did you tell the police that he began pushing you and at one point you fell to the floor as the result of being pushed, that after getting up off the floor, you were punched on the right side of your head twice by M[.], that he used an open hand with his knuckles clenched when striking you on the head, that you advised him that you were going to call the police, and he left the area?
“JUROR NO. 10: I’ve never had a domestic violence claim on him, so I don’t know how it came to the fact that I said that. Can I get a copy of this?
“THE COURT: Well, you’re not in trouble with respect to it, JUROR NO. 10. I just wanted to find out whether or not these things happened or not.
[THE PROSECUTOR]: Here’s the other one.
“THE COURT: Then there was a complaint that you evidently told the police that a M[.] L[.]... I guess it’s the same guy.
“JUROR No. 10: Yeah, that’s my daughter’s father.
“THE COURT: -- had hit you a few days – a couple of years earlier, 1991. I’ll quote from it. It said [Juror No. 10] said her live-in boyfriend, M[.] L[.], hit her and kicked her several times while the two were in bed.
“JUROR NO. 10: We never had problems, me and him. Never. So, I don’t know how this is even coming about, because if that was the case, I wouldn’t even be on this trial. I mean, that wouldn’t be fair to anybody else at all.
“THE COURT: Any questions, [prosecutor]? I want you to keep it brief.
“[THE PROSECUTOR]: Were you also a witness to domestic violence in 1998? A friend of yours, E[.] M[.] S[.], needed help? [¶]... [¶] And you helped her. [¶]... [¶] On July 22, 1998.
“JUROR NO. 10: So, E[.] M[.] S[.]?
“[THE PROSECUTOR]: Yes. You were interviewed at Salinas Police Department on October 27, 1998, and you helped her out to get away from her boyfriend, who you observed pulling on her?
“JUROR NO. 10: They were arguing. I don’t know if they actually fought, or I think they were arguing and she told me that she could come over. I don’t know if that physical fact happened. I don’t know.
“[THE PROSECUTOR]: Are you saying you didn’t talk to the Salinas Police Department in 1991 about Mr. M[.]?
“JUROR NO. 10: Mr. M[.]? I never called the cops on him. We never – we never fought.
“[THE PROSECUTOR]: And did you talk to the police in December of 1993 about Mr. M[.]?
“JUROR NO. 10: No. We – the officers talked one time because he had jumped out the window. I even got mad at him because he was laughing about it. I go, why are you doing this? Why are you always doing this? It’s not a joke. But, it wasn’t because of domestic violence.
“[THE PROSECUTOR]: Were you also convicted of Vehicle Code Section 31, providing false information to a police officer December 21, 1993?
“JUROR NO. 10: No.
“[THE PROSECUTOR]: I’m going to show you a photo and it has Monterey County [#]. Is that you?
“JUROR NO. 10: Yeah, this is me. I turned myself in twice when I was
“[THE PROSECUTOR]: You were booked into County Jail?
“JUROR NO. 10: Yeah, when I went and turned myself in when I was working in the lettuce, and I didn’t care about paying my bills, I figured, I’m working, I’ll just turn myself in sometime. That was the easy way out for me being
“[THE PROSECUTOR]: So, you have a conviction?
“JUROR NO. 10: No. I think it was for a taillight or insurance or something like that, or speeding. I’m not sure what it was.
“THE COURT: Anything else?
[THE PROSECUTOR]: No.
“THE COURT: [Defense counsel], questions?
“[DEFENSE COUNSEL]: Ma’am, what happened with your daughter’s father, do those instances – do you feel like you’re a victim of domestic violence in any way?
“JUROR NO. 10: No.
“[DEFENSE COUNSEL]: Have any of your experiences with him or any other man affected your ability to be fair and impartial in this case?
“JUROR NO. 10: Yes. But if this is going to be a problem with the prosecutor, then you can excuse me if you like because I don’t know what they’re going to be thinking. But, to me, it’s not a problem. I’ve never been in a domestic violence act.
“[DEFENSE COUNSEL]: So, the reports they showed you, do you feel that those are accurate or not accurate?
“JUROR NO. 10: With the incident that happened with my husband – well, the baby’s father, he had jumped out the window, and I don’t know who had called the cops. I even got mad at him and got up, I’m super mosquito. I’m thinking, you need to cut it out, you need to quit making jokes like that. We never got into – I was never a part of domestic violence.
“[DEFENSE COUNSEL]: So – that’s it.
“THE COURT: Thank you. If you’d wait outside please.”
After Juror No. 10 left the courtroom, the court asked the prosecutor if she had any comments. The prosecutor stated that, in her opinion, Juror No. 10 “was not candid in voir dire, and obviously not candid with us here, ” and she asked the court to remove the juror. Defense counsel argued: “I’m not sure we can assume that she’s not being candid. I think what we’ve got is police reports going back 15 years and more that she’s never read before, that we are assuming that they are accurate and true, and she’s now, as the Court said, flatly denying it as it reads in the police reports. [¶] I think the relevant consideration is not whether or not what happened in the reports is true, but whether or not her recollection of events 15 plus years ago is of any significance to her. They are obviously not of any significance to her. She does not view them as domestic violence situations. She says that she’s not a domestic violence victim. If that is her point of view, if that is how she interprets her history, then she has not concealed anything from us. [¶] And she further goes on to say that that doesn’t affect her ability in this case. With respect to her prior conviction for Vehicle Code Section 31, I think that she is admitting to that, but she just doesn’t understand the word conviction, because she said that she did time, that it was easier for her. She mentioned it might have had something to do with a taillight or insurance, and it very well may have, and we don’t have reports on that. So, that doesn’t strike me as significant. [¶] She may be of a different mind frame than others, but that in and of itself isn’t going to affect her ability to be a juror. To me, the question is whether or not her history affects her. I don’t think we have evidence that she has deliberately concealed anything from us.”
In ruling to discharge Juror No. 10, the court stated: “[N]ot only does it appear to the Court that Juror No. 10 concealed material information during voir dire, thereby depriving both sides of the ability to evaluate her and certainly to question her further on these material issues, ... the main thrust of the all-day questioning session was whether or not people had a bias or other reason why they could not be a fair and impartial juror. [¶] We had culled out for the most part the first day people who had hardship problems, and most of the people who had problems with the subject matter of the trial. When we began voir dire in earnest the second day of jury selection, most of the questioning surrounded the issue of the nature of the case, whether people had any personal experiences that might affect their ability to be fair and impartial, and Juror No. 10 told us nothing about her obvious domestic violence experience where she was personally assaulted twice by her live-in boyfriend to the point where the police came out and she made statements to them describing the violence that was perpetrated upon her. [¶] Then today at [the] hearing, she denied again having any domestic violence experience, and even when shown the reports describing her accounts of domestic violence being perpetrated upon her, she refused to accept that, and denied it, and said that – implied the police must have made it up. [¶] Then there’s also the question of she having been convicted of an offense of – involving her personal honesty involving a police officer. That topic was also broached to the jury panel many times. People were encouraged to be honest with the Court and to bring that information forward if it existed. She didn’t mention that conviction. She denied it again today, and when asked about it, and then denied it after having been shown her own mug shot which was connected to the documents showing that she does have a conviction for making a false report to the police. [¶] Had the parties known this material, I can’t imagine that she would have remained on the jury panel. [¶] And it does appear to me that she has violated her oath as a juror, she has committed juror misconduct by concealing material information that bears directly upon her attitudes about domestic violence and her attitudes towards police and that a strong presumption has been raised that her conduct has compromised her impartiality, and I see nothing in the record that would rebut that presumption.”
Defense counsel objected to the removal of Juror No. 10 and moved for a mistrial. Counsel argued that the juror’s falsehoods, deliberate concealment, or nondisclosure of facts and attitudes affected the entire jury selection process in the case. “As the Court mentioned, there would at least have been further questions asked of her. It would have affected either side’s use of either challenges for cause or peremptory challenges. It could have affected the entire composition of the jury.” Counsel further argued that the juror’s presence on the jury panel may have affected the entire panel. “[O]ne of the other juror’s notes in this case indicated that [Juror No. 10] has spoken about her divorce to the jury panel during deliberations. She has spoken about potentially wanting to commit suicide, which is an issue in this case, in this trial.”
The court asked counsel, “Would you want to keep her on the jury?” Counsel responded: “I think given the Court’s finding now, this is my motion. [¶] The other thing I want to point out is... given all the jurors or many of the jurors, I believe ten of them, wanting her off the jury, I have a concern about substituting her out, bringing an alternate in and it creating appearance that the dissenter will be removed, and it could have a chilling effect on some of the deliberations. [¶] I’m also concerned because as we know, deliberations have to start anew. Today is Friday. My understanding is your Honor will be gone next week. Given the complexity of this case and the procedures and what’s going on with the jury, I’m very concerned about having another Court step in. I would not be consenting to that.”
The court responded that case law stands for the proposition that, in dealing with similar situations, the remedy is to remove the juror in question and seat an alternate. “That’s why we picked alternate jurors in the case, and there’s no authority that I know of that just because a juror concealed material information in voir dire, that that infects the process as a whole or the panel as a whole or the jury panel that was selected. [¶] So, I believe that the proper remedy is to remove Juror No. 10 and to substitute in an alternate juror, and that’s the Court’s order.”
At 10:15 a.m., the court informed the remaining jurors that Juror No. 10 had been excused from further service and that the first alternate would be substituted in. The court stated that deliberations were to begin anew, that there was to be no discussion with the new panel member as to what went on before, that any charts or other work product they had already made would have to be discarded, and that they were being given a new set of verdict forms. The new jury panel retired to deliberate at 10:30 a.m., and deliberations continued until 4:50 p.m. that day. The jury began its deliberations at 9:10 a.m. on Monday, March 9, 2009. The court reporter read back testimony during the deliberations and, at 3:45 p.m., the jury informed the court that it had reached a verdict.
Defendant now contends that he was denied his constitutional right to a trial by unbiased, impartial jurors when the court discharged Juror No. 10. He argues that “the evidence did not establish by a demonstrable reality a substantial likelihood that juror no. 10 was actually biased for or against [him].” The Attorney General contends that “the record clearly shows that the court dismissed Juror No. 10 for concealing material information during voir dire, which constituted substantial grounds for finding Juror No. 10 was biased, despite her claims during the deliberations that she was not. Substantial evidence supported the trial court’s finding.”
“ ‘As the United States Supreme Court has stated, “Voir dire examination serves to protect [a criminal defendant’s right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror’s being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.” [Citation.] [¶] A juror who conceals relevant facts or gives false answers during voir dire examination thus undermines the jury selection process and commits misconduct.’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 822-823 (Wilson).)
“ ‘Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. “[T]he proper test to be applied to unintentional ‘concealment’ is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he [or she] is unable to perform his [or her] duty.” ’ [Citations.]” (Wilson, supra, 44 Cal.4th at p. 823.)
“The trial court may discharge a juror for good cause at any time, including during deliberations, if the court finds that the juror is unable to perform his or her duty. (§ 1089.)” (People v. Lomax (2010) 49 Cal.4th 530, 588 (Lomax); see also People v. Green (1995) 31 Cal.App.4th 1001, 1010 (Green).) “The trial court’s authority to discharge a juror includes the authority to conduct an appropriate investigation concerning whether there is good cause to do so, and the authority to take ‘less drastic steps [than discharge] where appropriate to deter any misconduct or misunderstanding it has reason to suspect.’ [Citation.]” (People v. Alexander (2010) 49 Cal.4th 846, 926 (Alexander).) “A trial court ‘has broad discretion to investigate and remove a juror in the midst of trial where it finds that, for any reason, the juror is no longer able or qualified to serve.’ [Citation.]” (People v. Bennett (2009) 45 Cal.4th 577, 621 (Bennett).) “ ‘Grounds for investigation or discharge of a juror may be established by his [or her] statements or conduct, including events which occur during jury deliberations and are reported by fellow panelists. [Citations.]’ [Citation.]” (Lomax, supra, 49 Cal.4th at p. 588.)
“When the trial court was notified that a juror had a disqualifying bias, it had a duty to investigate the allegation. [Citations.]” (Lomax, supra, 49 Cal.4th at p. 592; People v. Martinez (2010) 47 Cal.4th 911, 941 (Martinez); People v.Barnwell (2007) 41 Cal.4th 1038, 1051 (Barnwell).) “ ‘A sitting juror’s actual bias, which would have supported a challenge for cause, renders him [or her] “unable to perform his [or her] duty” and thus subject to discharge and substitution....’ [Citation.]” (Lomax, supra, 49 Cal.4th at p. 589; Barnwell, supra, 41 Cal.4th at p. 1051.) “Specifically, a bias against law enforcement officers that renders a juror unable to fairly weigh police testimony is grounds for the juror’s replacement. [Citations.] Bias may be established by the testimony of other jurors. [Citation.]” (Barnwell, supra, at p. 1051.) “Bias is often intertwined with a failure or refusal to deliberate. ‘A juror who is actually biased is unable to perform the duty to fairly deliberate and thus is subject to discharge. [Citations.]’ [Citations.]” (Lomax, supra, 49 Cal.4th at p. 589.)
“A distinction must be made, of course, between a juror who cannot fairly deliberate because of bias and one who, in good faith, disagrees with the others and holds his or her ground. ‘The circumstance that a juror does not deliberate well or relies on faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views. [Citation.]’ [Citation.]” (Barnwell, supra, 41 Cal.4th at p. 1051; Alexander, supra, 49 Cal.4th at p. 926.) “ ‘A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views....’ [Citation.] A refusal to deliberate is misconduct. [Citation.]” (Lomax, supra, 49 Cal.4th at p. 589.)
“On appeal, we review for abuse of discretion the trial court’s decisions concerning whether and how to investigate the possibility that a juror should be discharged for failure to perform his or her duties, and whether, ultimately, to discharge the juror or to take some other action. [Citation.]” (Alexander, supra, 49 Cal.4th at p. 927; Martinez, supra, 47 Cal.4th at p. 942.) “Although decisions to investigate juror misconduct and to discharge a juror are matters within the trial court’s discretion [citation], ... ‘a somewhat stronger showing’ than is typical for abuse of discretion review must be made to support such decisions on appeal. [Citation.]” (Lomax, supra, 49 Cal.4th at p. 589.) The appellate court will not presume bias; the basis for a juror’s disqualification must appear on the record as a “demonstrable reality.” (Barnwell, supra, 41 Cal.4th at p. 1052; Bennett, supra, 45 Cal.4th at p. 621; Martinez, supra, 47 Cal.4th at p. 943; Green, supra, 31 Cal.App.4th at pp. 1011-1012.) “This standard involves ‘a more comprehensive and less deferential review’ than simply determining whether any substantial evidence in the record supports the trial court’s decision. [Citation.] It must appear ‘that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that bias was established.’ [Citation.] However, in applying the demonstrable reality test, we do not reweigh the evidence. [Citation.] The inquiry is whether ‘the trial court’s conclusion is manifestly supported by evidence on which the court actually relied.’ [Citation.]” (Lomax, supra, 49 Cal.4th at pp. 589-590, fn. omitted.)
A reviewing court must consider both the evidence and the reasons the court provides. (Barnwell, supra, 41 Cal.4th at p. 1053.) “The evidence bearing on the question whether a juror has exhibited a disqualifying bias during deliberations may be in conflict. Often, the identified juror will deny it and the other jurors will testify to examples of how he or she has revealed it. [Citation.] In such a case the trial court must weigh the credibility of those whose testimony it receives, taking into account the nuances attendant upon live testimony. The trial court may also draw upon the observations it has made of the jurors during voir dire and the trial itself. Naturally, in such circumstances, we afford deference to the trial court’s factual determinations, based, as they are, on firsthand observations unavailable to us on appeal.” (Ibid.) Accordingly, “[w]hen the trial court discovers during trial that a juror misrepresented or concealed material information on voir dire tending to show bias, the trial court may discharge the juror if, after examination of the juror, the record discloses reasonable grounds for inferring bias as a ‘demonstrable reality, ’ even though the juror continues to deny bias. [Citations.]” (People v. Price (1991) 1 Cal.4th 324, 400.)
In this case, the trial court found that Juror No. 10 concealed material information during voir dire that bore directly on her attitudes toward domestic violence and the police. The court further found that Juror No. 10’s conduct compromised her impartiality, violated her oath as a juror, and constituted misconduct. We agree with the trial court that the record discloses misrepresentations and/or concealment of material information implying bias on the part of Juror No. 10 as a “demonstrable reality, ” even though the juror denied bias.
The record discloses that the jury was already having difficulties in its deliberations relating to Juror No. 10, when an investigator for the prosecutor’s office learned that Juror No. 10 was familiar to other law enforcement personnel. The investigator searched law enforcement records and learned of the juror’s criminal conviction and her three contacts with law enforcement personnel regarding her experiences with domestic violence. None of the information the investigator found had been revealed by Juror No. 10 during voir dire.
The information concealed by Juror No. 10 was material. This was a case involving multiple counts of domestic violence, and Juror No. 10 concealed on voir dire her history of involvement with domestic violence. The police records attached to the prosecutor’s memorandum indicated that Juror No. 10 twice reported being the victim of domestic violence by her live-in boyfriend, and she acknowledged to another officer that she witnessed an incident of domestic violence on her girlfriend. When asked about and shown the police reports during the hearing, Juror No. 10 denied the incidents occurred as reported, and denied that she was ever a victim of domestic violence. In addition, the juror denied having a conviction for violating Vehicle Code section 31, relating to giving false information to a peace officer, a misdemeanor. (Veh. Code, § 40000.5.) The conduct underlying such a misdemeanor bears on the juror’s veracity, or willingness to lie. (See People v. Wheeler (1992) 4 Cal.4th 284, 292.) All of this information was relevant and material information bearing directly on the juror’s attitudes toward domestic violence and the police, and it is reasonably probable that one or both of the parties would have wanted to have the juror excused from the jury had she revealed the information during voir dire. In addition, other jurors reported that Juror No. 10 was not following the court’s instructions regarding the jury’s deliberation duties. On this record, we find that the trial court did not abuse its discretion in finding good cause to discharge Juror No. 10 and in seating an alternate in her place.
“ ‘The substitution of a juror for good cause pursuant to section 1089, even after deliberations have commenced, “ ‘does not offend constitutional proscriptions.’ ” [Citation.]’ [Citation.]” (Lomax, supra, 49 Cal.4th at p. 591.) Because we have concluded that the trial court did not abuse its discretion in discharging Juror No. 10, the discharge of the juror did not violate defendant’s constitutional rights. (Id. at p. 592.)
Sufficiency of the Evidence
Counts 7 and 16, as submitted to the jury, charged defendant with aggravated mayhem (§ 205). The following evidence was presented in support of count 16.
In April 2006, defendant told his spouse that he wanted her to take a polygraph test, and that one of the questions he would ask her was whether she had ever “cheated on him” during their marriage. She told him that her answer would be yes, because she had had an affair between 1992 and 1999. Defendant became very angry, and started accompanying his spouse to work every day. In addition, he stated several times that people needed to know that she had been an adulteress, and that he was going to tattoo “adulteress” on her forehead. She had consented to other tattoos on her body that were mostly covered by her work clothing, but every time defendant mentioned this one she told him that she would not get it.
In June 2006, defendant told his spouse that if she did not agree to get the tattoo, he would drug her and put it on her anyway. Because she believed that defendant would drug her and tie her up, and then she would not know what kind of tattoo he would give her or where he would put it, she allowed him to put the tattoo on the right side of her forehead in black ink. She had the tattoo covered by defendant in August or September 2006 with a “smile now, cry later” symbol in blue and green, but the original lettering can still be seen “[i]f you really look at the tattoo.”
Theresa McMillin, a physician assistant practicing cosmetic dermatology, examined defendant’s spouse’s forehead “cover tattoo” to determine whether it could be removed. Usually, tattoos are removed by treatment with a laser multiple times, six to eight weeks apart, and the treatment is very painful. McMillin testified that, in order to remove the cover tattoo because “it’s got quite a bit of ink, ... it would take a lot of treatments. I don’t think that this tattoo could ever be removed.... It is impossible to remove with the laser. She would have to have surgery. If she wanted to completely remove the tattoo, that there was no residual tattoo left, she’d have to have it surgically cut out.” If it were to be surgically removed, there would be residual scarring. In McMillin’s opinion defendant’s spouse’s forehead is “permanently disfigured.”
The following evidence was presented in support of count 7.
Defendant told his spouse that she had to tell one person she met each week that she had had an affair and had been a “whore.” She did not do it, although she told him that she would. In late April and early May 2007, defendant repeatedly told his spouse that if she did not tell everyone she met that she had been a “whore, ” he would tattoo “whore” on her so that everyone could see it. He wanted to put the tattoo on her neck or on the bottom of her chin, but she told him that she did not want any tattoos there. One day, defendant’s spouse told him that she could not take hearing about the tattoo anymore, “24 hours a day, seven days a week, ” so he should just do it and shut up. That night, while defendant was trying to decide where he would put the tattoo, his spouse told him that she would tell everyone she met that she was a “whore” if he wanted her to, so that he would not put the tattoo on her. Defendant decided to, and did, put the tattoo on the right side of her neck, underneath her chin. She still had the tattoo at the time of defendant’s trial.
McMillin examined the tattoo on defendant’s spouse’s neck to see if it could be removed. Her opinion about that tattoo was the same as her opinion about the forehead tattoo. “The dark ink... would still require a lot of treatments. We could get that down to maybe where it looked like there was a smudge, but it would take quite a few treatments; and then the green and yellow beneath, we couldn’t get rid of that with the laser.” The only way defendant’s spouse could completely remove the writing would be through surgery, which would result in scarring. In McMillin’s opinion, defendant’s spouse neck is “permanently disfigured.”
The jury found defendant guilty of aggravated mayhem on both counts 7 and 16. Defendant now contends that the evidence is insufficient to support those convictions because the evidence “did not establish that [he] caused permanent disfigurement of [his spouse].” “Considering, as this Court must, the evidence most favorable to the prosecution, and assuming that [defendant’s spouse] did not want the two tattoos in question, the application of the tattoos did not cause the permanent disability or disfigurement of [her] body.” “The tattoo of the word ‘adulteress’ was on her body only for two or three months until [defendant], at her request, covered it up by applying another tattoo.... Moreover, the tattoos were not painful or even unpleasant being applied as witnessed by the fact that [defendant] had applied eighty other tattoos to [his spouse], all of which were at her request.”
The Attorney General contends that the record “contains substantial evidence supporting the aggravated mayhem convictions.”
“In resolving claims involving the sufficiency of evidence, a reviewing court must determine ‘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.’ (Jackson v. Virginia (1979) 443 U.S. 307, 309....) The supporting evidence must be substantial, that is, ‘evidence that “reasonably inspires confidence and is of ‘solid value.’ ” ’ [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Young (2005) 34 Cal.4th 1149, 1175) “ ‘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.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“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....” (§ 205.) “To prove mayhem based on a disfiguring injury, the injury must be permanent.” (People v. Hill (1994) 23 Cal.App.4th 1566, 1570.) The same is true for aggravated mayhem; to support a conviction, the disfiguring injury must be permanent. (People v. Newby (2008) 167 Cal.App.4th 1341, 1346-1347.) The tattooing of a person may constitute mayhem, if it is done without the victim’s consent. (People v. Page (1980) 104 Cal.App.3d 569, 576.) “The law of mayhem as it has developed protects the integrity of the victim’s person.” (Id. at p. 578.) “[T]he possibility that a victim’s disfigurement might be alleviated through reconstructive surgery is no bar to a finding of ‘permanent’ injury. (People v. Hill[, supra, ] 23 Cal.App.4th [at pp.] 1572-1574; People v. Keenan (1991) 227 Cal.App.3d 26, 36, fn. 6.)” (People v. Williams (1996) 46 Cal.App.4th 1767, 1774; see also People v. Page, supra, 104 Cal.App.3d at p. 578.)
In Page, one defendant held down the victim and the other defendant tattooed the victim while the victim pleaded with them to stop. (People v. Page, supra, 104 Cal.App.3d at p. 572.) A doctor testified that removal of the tattoo would leave the victim permanently scarred for life. (Id. at p. 578.) The appellate court held that “an injury which leaves permanent scarring of that sort is clearly ‘disfigurement’ ” within the meaning of the mayhem statute. (Ibid.) In Keenan, the defendant burned both breasts of his victim with a lit cigarette. (People v. Keenan, supra, 227 Cal.App.3d at p. 29.) The appellate court found that, “[i]n the absence of any evidence to the contrary, we assume that the scars [the victim] suffered, which remained three and one-half months after the attack, were permanent. [Citations.]” (Id. at p. 36, fn. 6.) In Hill, the defendant hit, stomped on, and kicked the victim’s face. (People v. Hill, supra, 23 Cal.App.4th at p. 1569.) As a result, the victim suffered lacerations, cuts, bruises, fractures, nerve and muscle damage, and the displacement of one eye, requiring multiple surgeries. (Id. at p. 1570.) A doctor testified at trial that future surgeries were planned and that it would not be possible to tell for at least a year whether the victim’s nerve damage and visual impairment would be permanent. (Ibid.) The appellate court rejected the defendant’s contention “that evidence of medical alleviation may be used in a mayhem trial to prove an injury, permanent by its nature, may be corrected by medical procedures.” (Id. at p. 1574.)
The jury was instructed pursuant to CALCRIM No. 800 as to counts 7 and 16 that, to prove aggravated mayhem, the People had to prove that (1) defendant unlawfully and maliciously disabled or disfigured someone permanently; (2) when defendant acted, he intended to permanently disfigure the person; and (3) under the circumstances, defendant’s acts showed extreme indifference to the physical or psychological well-being of the person. The court further instructed that, “A disfiguring injury may be permanent even if it can be repaired by medical procedures.”
In this case, based on the evidence presented, the jury could reasonably find that defendant’s tattooing of his spouse, without her consent, constituted aggravated mayhem. The tattoos were visible even when the victim was wearing clothing; they were of demeaning and vulgar language that defendant used to describe the victim; and they were permanent, in that they still existed at the time of defendant’s trial well over one year after defendant applied them and they could only be partially removed using laser treatments and permanently removed through surgery. Any surgical attempt to remove the tattoos would leave permanent scarring. The evidence is more than sufficient to support the convictions of defendant on counts 7 and 16 for aggravated mayhem. (People v. Page, supra, 104 Cal.App.3d at p. 578; People v. Keenan, supra, 227 Cal.App.3d at p. 36, fn. 6; People v. Hill, supra, 23 Cal.App.4th at p. 1574.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., duffy, J.