Opinion
A123978
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County
Super. Ct. No. 195462)
A jury found defendant Francisco Ramirez guilty as charged of torture (Pen. Code, § 206), aggravated mayhem (Pen. Code, § 205), first degree burglary (Pen. Code, § 459), and assault with a deadly weapon involving personal infliction of great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (e)), and the trial court sentenced him to state prison for a term of life. On this timely appeal, defendant contends: (1) the trial court violated his constitutional rights of confrontation and cross-examination by ruling the victim was unavailable, thus permitting the victim's prior testimony to be used at trial; (2) his convictions for torture and mayhem lack the support of substantial evidence; (3) the trial court committed error instructing the jury on aggravated mayhem by (a) refusing his request to supplement CALCRIM 800 with a pinpoint instruction, and (b) not instructing sua sponte on simple mayhem; and (4) the trial court used an incorrect legal standard when it denied his motion for a new trial. We conclude that none of these contentions has merit, and therefore affirm.
BACKGROUND
The victim, Sonya Baisden, testified that in 2004 defendant was her "boyfriend," and they had been seeing each other for approximately two years. After defendant was "incarcerated," Baisden told him, "I don't want to be with you when you come out if you're going to be abusive like you have been doing." During the time they were together, defendant would beat her "[w]henever things . . . didn't go his way . . . [w]henever he got angry." According to Baisden, defendant—who had "threatened me numerous . . . times throughout the relationship"—responded that 'what I said didn't matter." He began telephoning Baisden from jail, calling her a whore who was not faithful to him, and repeatedly telling her that "he would fuck me up for life," "[b]ecause I didn't want to be with him anymore."
Records from the San Francisco County Jail at San Bruno showed that defendant was released at 7:45 p.m. on December 17, 2004. Baisden testified that at about 9:30 p.m., she was staying in a small room at a residential hotel in San Francisco when she received a telephone call from defendant. He told her "I'm out." Two men were with Baisden at the time. Baisden "told him [defendant] I was in Room 4, which I wasn't, because I didn't want to see him."
Defendant called again when his cab was out in front of the hotel. Baisden went downstairs to tell the manager that "I did not want any visitors." Before she could convey that message, defendant saw her, raced through the lobby after her, and chased her upstairs to her room. Defendant saw a package of steak knives Baisden had just bought and that was on her bed. He removed a knife from the package, and then spoke to the two men in Spanish, following which they hurriedly left. Defendant locked the door.
Baisden further testified that she retreated to "the corner of my room." "I had nowhere to go because I was blocked in, the wall and my dresser, I was right in between it and couldn't move nowhere. And the bed was in front of me." Baisden tried to tell defendant "No, listen, wait, wait," but "he just got to stabbing." "All he said was, 'I told you. I told you.' That's all he said." Baisden interpreted defendant's remarks to be a reference to the threats he made while incarcerated.
According to Baisden, the knife in defendant's hands "broke off in me" with "the first stab wound" to her abdomen. Armed with a replacement knife, defendant stabbed Baisden once in each of her thighs, and once in the back. This knife also broke. Defendant then "took the last two steak knives," and holding them both in one hand, "he cut my face, twice." One of facial cuts was seven inches long; the other was four in length and damaged the vision in Baisden's left eye. Defendant was still saying to Baisden, "I told you." Baisden was now screaming for help. As for defendant, in her words, "He locked the . . . doorknob . . . and left me in there to die." Baisden estimated that the entire attack took no more than 10 seconds.
Covering her bleeding face with a pillow, Baisden flagged down a cab and went to General Hospital. At the hospital, Baisden told an officer that it was defendant who stabbed her. She handed a nurse one of the broken knife blades she had pulled out of herself. Another broken knife blade was found on the floor of Baisden's apartment. The next day, December 18, Baisden identified defendant from a photographic lineup. Defendant's fingerprints were found on the knife package.
Dr. Amy Hart described Baisden's injuries: "I saw on the forehead an oblique linear scar somewhat extended from the central part of her forehead through her left eyebrow and onto her left upper eyelid, measuring four and three-quarters inches in length.
"And then a second linear scar was present from the bridge of her nose extending horizontally two and a quarter inches into her left upper eyelid.
"On the front of her body on her left side of her chest below her left breast was a one-and-a-quarter inch in greatest length triangular scar.
"On the back she had on the right side a three-quarter-inch in greatest dimension scar.
"On the front of her right thigh she had a one-half-inch in greatest dimension scar.
"On the back of her left thigh she had a five-eighths-inch in greatest dimension scar.
"On the front of her right shin she had a three-and-a-half-inch linear scar."
The defense was defendant did not see or attack Baisden on the night of December 17, 2004. Defendant testified that he often called Baisden while he was in jail because she was pregnant and he was concerned for her. He never threatened her. Contrary to what the jail records showed, he was not actually released until 9:30 p.m. At the time of the attack, defendant was at another hotel and then at the bus station.
REVIEW
The Trial Court Did Not Err In Finding The Victim To Be Unavailable To Testify At Trial
Defendant's primary contention goes to the heart of the case against him.
Prior to trial the prosecution filed a motion "to introduce Sonya Baisden's prior testimony because she is no longer available." On July 24, 2008, the trial court conducted an evidentiary hearing pursuant to Evidence Code section 402. At the conclusion of the hearing, the trial court granted the motion, finding that "the Prosecution has undertaken extraordinary efforts to secure the availability of Ms. Baisden." Defendant attacks this ruling as not supported by substantial evidence, and that use of Baisden's testimony at trial violated his constitutional right of confrontation. The attack will not succeed.
In their moving papers, the prosecution detailed the history between Ms. Baisden and San Francisco authorities following the 2004 assault—and also explained the long gap between the offenses and defendant's trial for them: "The People charged defendant with attempted murder and other related charges pursuant to arrest warrant on January 4, 2005. The People also filed a motion to revoke defendant's felony probation based upon the same conduct. At a preliminary hearing held on April 28, 2005, Ms. Baisden testified and the court held defendant to answer on attempted murder and other related charges. The People subsequently dismissed the charges against defendant when they lost contact with the victim. The motion to revoke probation, however, remained pending and was heard on July 12-13, 2006 . . . . The People were able to locate Ms. Baisden for the revocation hearing and she testified. The court then found defendant in violation of his probation and sentenced him to five years in prison. The People subsequently re-charged defendant with torture and other related charges with a complaint filed on March 3, 2007. The People presented evidence through Proposition 115 at the preliminary hearing held on August 24, 2007." As will be seen, it was several days later that contact with Baisden was re-established.
The prosecution presented two witnesses at the 402 hearing. The first was San Francisco Police Officer Reynaldo Vargas, who testified as follows: He is a "beat officer" in the Mission district where Baisden lived. Approximately three weeks prior to the hearing, he did a Bay Area computer check on Baisden, who was the subject of an outstanding felony warrant for her arrest. He circulated copies of Baisden's "mug shot photo" to other officers in the district. Learning that Baisden used aliases, Vargas rechecked the hotels where she might have stayed. He also notified the fugitive recovery unit.
The second witness was Darci Mix, a criminal investigator for the district attorney's office. Her testimony, together with her six-page declaration that was attached to the prosecution's moving papers, showed the following: Mix began looking for Baisden on or about August 15, 2007, prior to the scheduled preliminary examination. However, she was not able to contact Baisden until August 27, at which point Baisden "immediately began to receive victim services." From then until February 2008, Baisden—thanks to "DA sponsored housing assistance"—was staying at a hotel in San Bruno. During this period, Mix or her partner periodically met and assisted Baisden "with transportation details" such as meeting with the prosecutor and "check[ing] in per probation terms." In February, Baisden "was removed from DA sponsored housing assistance," and as a consequence, Baisden "neglected to attend her probation status checks." Mix testified that Baisden at that time "wanted to be a part . . . of this case, and she was very willing to testify." In March 2008, "the DA's office . . . lost contact" with Baisden.
Mix was one of the officers who was directed by the district attorney to search for Baisden. She looked for Baisden in hospitals, hotels in the Mission and Tenderloin districts, and in jails. Mix ascertained that Baisden was not receiving services from the General Assistance Advocacy Project. She checked again with Baisden's boyfriend, the one Mix used to contact Baisden in August 2007. Mix found evidence that Baisden was visiting the boyfriend at a Tenderloin hotel. Mix maintained periodic surveillance of that hotel throughout April and May. However, because the surveillance was not round-the-clock, Baisden several times visited her boyfriend at the hotel without being seen. In May, an altercation involving the boyfriend's son led to Baisden being banned from the hotel. Baisden knew from her boyfriend that she was being sought. Up to the day of the hearing, Mix and other officers continued their efforts to try to locate Baisden.
Even after Crawford v. Washington (2004) 541 U.S. 36, prior testimony by a witness shown to be unavailable is admissible at trial if the defendant had an opportunity to cross-examine the witness. (People v. Wilson (2005) 36 Cal.4th 309, 343 (Wilson); People v. Seijas (2005) 36 Cal.4th 291, 303.) Specifically, "[t]he defendant 'must not only have had the opportunity to cross-examine the witness at the previous hearing, he must also have had "an interest and motive similar to that which he has at the [subsequent] hearing." ' " (People v. Seijas, supra, at p. 303, quoting People v. Smith (2003) 30 Cal.4th 581, 611.)
" 'A defendant has a constitutional right to confront witnesses, but this right is not absolute. If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial. [Citations.] The constitutional right to confront witnesses mandates that, before a witness can be found unavailable, the prosecution must "have made a good-faith effort to obtain his presence at trial." ' [Citation.] California law and federal constitutional requirements are the same in this regard. [Citation.] Moreover, for the prior testimony to be admissible, the defendant must have had the opportunity to cross-examine the witness at that hearing with an interest and motive similar to that which defendant has at the hearing at which the testimony is admitted. [Citations.] 'The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable.' [Citations.]
"[¶] . . . [¶] After the hearing, the court determined that the prosecution had used due diligence in trying to find [a witness]. When, as here, the relevant facts are undisputed, we review this determination independently. [Citation.] After independent review, we agree with the trial court that the prosecution satisfied its burden of showing due diligence. The term 'due diligence' ' "connotes persevering application, untiring efforts in good earnest, efforts of a substantial character." ' [Citation.] 'Relevant considerations include " 'whether the search was timely begun' " [citation], the importance of the witness's testimony [citation], and whether leads were competently explored [citation]. [Citation.]' " (People v. Valencia (2008) 43 Cal.4th 268, 291-292 (Valencia).)
Defendant attacks the prosecution's efforts to locate Baisden as "inadequate." The ensuing discussion in his brief shows that defendant employs a selective view of the efforts to locate Baisden. Such an approach may be understandable from his perspective, but the trial court, and this court, must have a more integrated view.
Defendant's approach is apparent in how he characterizes Officer Vargas's testimony. According to defendant: "Officer Vargas's efforts to find Baisden were limited to handing out her picture and asking other Mission District beat officers if they had seen her. He did not contact any of Baisden's friends or family members and he did not share Baisden's information with officers in other districts in San Francisco, much less other police departments. Furthermore, Vargas only looked for Baisden during the day. He was unaware of any attempts, other than his own, to locate Baisden. There can be no doubt that Officer Vargas's perfunctory efforts did not come close to a diligent effort to find Baisden for trial."
This is unfair to Officer Vargas because he was not in charge of the efforts to locate Baisden. That role was taken by the prosecutor and, according to Ms. Mix's declaration, it was the prosecutor who contacted police authorities in the Tenderloin and Mission districts to have them try to find Baisden. It is unrealistic to assume that a beat officer such as Vargas could direct a citywide search, or to fault him for not "shar[ing] . . . information with officers in other districts in San Francisco, much less other police departments" or being "unaware of any attempts, other than his own, to locate Baisden." That was not his responsibility. It is also unreasonable to assume that Officer Vargas could unilaterally alter his schedule to undertake evening searches, or that he should be expected to do so voluntarily. Defendant assumes that Vargas's duties gave him the ability to operate at night or to otherwise neglect other duties he would have.
The same approach is discernible in defendant's attempted filleting of Mix's efforts. Mix is faulted for failing to give Baisden a subpoena, yet on the same page of his brief he concedes that "a warrant was issued for Baisden for failure to honor her probationary terms." Why a subpoena should have had greater efficacy in keeping Baisden on the DA's radar screen than her own self-interest is left unexplained. Remember also that even the "DA sponsored" "victim services" were insufficient incentive to keep Baisden in contact. Defendant critiques Mix for not checking with Baisden's family or her former boyfriend (i.e., one of the two men defendant ordered out of her room before attacking Baisden). But Mix had already located Baisden using a more current boyfriend, and the prospect of doing so again appeared promising; it was because Baisden was periodically seeing the successor boyfriend at a residential hotel that, as defendant concedes, caused Mix to "stake out" that hotel.
Thus, the situation here is the same as repeatedly confronted by our Supreme Court: "[D]efendant has suggested other things the prosecution might have done. But these suggestions do 'not change our conclusion that the prosecution exercised reasonable diligence. "That additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the People used reasonable efforts to locate the witness." ' " (Valencia, supra, 43 Cal.4th 268, 292, quoting Wilson, supra, 36 Cal.4th 309, 342.)
Defendant insists that the prosecution's duty to "take reasonable precautions to prevent the witness from disappearing . . . [¶] . . . was even greater in the instant case where they were well aware of Baisden's tendency to disappear." But this "tendency" was actually only a single instance, namely, Baisden's nonappearance at defendant's probation revocation hearing in July 2006. Thereafter, the prosecution re-established contact with Baisden, who appeared eager to assist. Certainly that helpful mental state, together with receiving the material benefits of "victim services" and providing assistance to Baisden to make her "probation status checks," demonstrates that the prosecution was in effect constantly monitoring Baisden. It is of no import that it was thought more useful to keep the constraints informal. "The prosecution is not required 'to keep "periodic tabs" on every material witness in a criminal case . . . .' [Citation.] Also, the prosecution is not required, absent knowledge of a 'substantive risk that this important witness would flee,' to 'take adequate preventative measures' to stop the witness from disappearing." (Wilson, supra, 36 Cal.4th 309, 342.) In light of Baisden's expressed desire to help in prosecuting defendant, there was no obvious need to put her under more formal restraint.
Apart from the obvious risk of alienating Baisden by subpoenaing her, as previously mentioned there is nothing to suggest that that piece of paper would have ensured her presence to testify. This is what the trial court concluded. We discern no basis for disagreeing.
Defendant asserts that "If the prosecution was genuine in its desire to find Baisden, it seems all they really had to do was stake out the Senator Hotel" where Baisden's boyfriend was staying, and condemns Mix's efforts to do so as "feckless." Yet again, defendant overlooks that Mix undoubtedly had limited resources and other duties besides finding Baisden. Officer Vargas was also checking that hotel, as were other officers.
On the basis of our independent review, we conclude that the prosecution's efforts to secure Baisden's presence at defendant's trial were reasonable and made in good faith. (Valencia, supra, 43 Cal.4th 268, 291, 293.)
Defendant next argues that his motives and interest in cross-examining Baisden "were not the same at trial as they were at the prior proceedings at which Baisden testified." There is no need to extend the length of this opinion by detailing the obvious. The nature of the charges against defendant may have changed between the time of the proceedings at which Baisden testified and his trial, but the circumstances giving rise to them did not. The events of the night December 17, 2004 would always form the factual core of whatever charges defendant might face. His motives in discrediting Baisden as a witness and impeaching her credibility were likewise constant. (See People v. Harris (2005) 37 Cal.4th 310, 333.)
Substantial Evidence Supports The Convictions
Defendant's contention that his convictions for torture and mayhem lack the support of substantial evidence are to be evaluated according to well-established principles:
" 'A reviewing court faced with such a claim determines "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." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Moon (2005) 37 Cal.4th 1, 22 (Moon))"Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity upon which a determination depends. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.)
Torture
"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 another, is guilty of torture." (Pen. Code, § 206.) Defendant does not dispute that the evidence was sufficient to establish that great bodily injury was inflicted, only whether it was inflicted with the specific intent of revenge. Defendant's argument is creative, but at bottom it is an attempt to have this court reweigh the evidence, a function not within out powers of review.
"Torture does not require the defendant act with premeditation and deliberation, and it does not require that he intend to inflict prolonged pain. [Citation.] Accordingly, the length of time over which the offense occurred is relevant but not necessarily determinative. [Citation.] Likewise, the severity of the wounds is relevant but not necessarily determinative. [Citation.] [¶] The intent with which a person acts is rarely susceptible of direct proof and usually must be inferred from facts and circumstances surrounding the offense. [Citation.] . . . We must uphold the verdict unless it clearly appears that upon no hypothesis whatever is there sufficient evidence to support it. [Citation.]" (People v. Massie (2006) 142 Cal.App.4th 365, 371.)
Defendant notes the victim's testimony concerning the short period of time of the actual assault. However, as already shown, the mere ticking of seconds is hardly dispositive. Viewing the evidence most favorably to the prosecution, as we are required to do, the record is more than adequate for the jury to conclude that the idea of revenge did not first enter defendant's mind when he entered the victim's room. Defendant's repeated threats to the victim that he would "fuck [her] up for life" can be viewed as a resolve that upon release from jail he would exact his revenge for Baisden's supposed lack of fidelity to him. That defendant immediately upon his release from jail came after Baisden could be accepted by the jury as proof that the threats were not idle utterances of passing irritation, but reflective of an iron resolve that had hardened into a plan of action. And certainly the injuries he inflicted, particularly the deep and prominent facial scars that will blight the victim's existence, could be viewed as the fulfillment of his threats— and the accomplishment of his revenge. Finally, there is the matter of defendant repeatedly telling the victim "I told you" during the attack. The jury could view this as defendant's cold-blooded reminder to the victim that his threats were a nightmare being made real. Taunting the victim during an attack has been found in torture convictions. (See, e.g., People v. Quintero (2006) 135 Cal.App.4th 1152, 1163-1164 [" '[h]ow do you like this' "]; People v. Hale (1999) 75 Cal.App.4th 94, 106-107 [" 'That's what you get' "].)
Mayhem
"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." (Pen. Code, § 205.) Defendant contends that the evidence of his intent to disfigure is inadequate. There is no merit to this argument.
"Aggravated mayhem is a specific intent crime which requires proof the defendant specifically intended to cause the maiming injury, i.e., the permanent disability or disfigurement. . . . [E]vidence of a 'controlled and directed' attack or an attack of 'focused or limited scope' may provide substantial evidence of such specific intent. [Citation.] However, where the evidence shows no more than an 'indiscriminate' or 'random' attack, or an 'explosion of violence' upon the victim, it is insufficient to prove a specific intent to maim. [Citation.]" (People v. Quintero, supra, 135 Cal.App.4th 1152, 1162.) "Aggravated mayhem requires proof the defendant specifically intended to maim—to cause a permanent disability or disfigurement. [Citation.] A jury may not find specific intent 'solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately.' [Citation.] 'A jury may infer a defendant's specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors.' [Citation.] '[E]vidence of a "controlled and directed" attack or an attack of "focused or limited scope" may provide substantial evidence of' a specific intent to maim. [Citation.]" (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831.)
"[T]he dispositive issue is whether there is substantial evidence to support the jury's implied finding that [defendant] entertained the specific intent . . . . As our Supreme Court has explained, 'evidence of a defendant's state of mind is almost invariably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [Citations.]' [Citation.] In particular, '[a] jury may infer a defendant's specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors.' [Citation.]" (People v. Park (2003) 112 Cal.App.4th 61, 68.)
The record here contains ample evidence to support the jury's verdict. This was no " 'random' " attack, but clearly one that was " 'focused,' " " 'controlled and directed' " at a particular victim. (People v. Szadziewicz, supra, 161 Cal.App.4th 823, 831; People v. Quintero, supra, 135 Cal.App.4th 1152, 1162.) There was credible evidence that for months prior to the attack defendant made threats to Baisden, and then, immediately upon his release from prison, he sought her out and fulfilled those threats.
The Trial Court Did Not Err In Refusing To Instruct With Defendant's Modification To CALCRIM 800
The trial court instructed the jury with CALCRIM 800 as follows: "The defendant is charged in Count 2 with aggravated mayhem in violation of Penal Code 205. 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; [¶] 2. When the defendant acted, he intended to permanently disable or disfigure the other person; and [¶] 3. Under the circumstances, the defendant's act showed extreme indifference to the physical or psychological well-being of the other person."
Defendant asked that the trial court instruct the jury with this addition, taken verbatim from People v. Park, supra, 112 Cal.App.4th 61, 64, and found in the CALCRIM use notes under "Related Issues": "Aggravated mayhem . . . requires the specific intent to cause the maiming injury. Evidence that shows no more than an indiscriminate attack is insufficient to prove the required specific intent. Furthermore, specific intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately."
The trial court denied the defense request, stating in effect that CALCRIM 800 was sufficient "and I'm not changing it to add something from a use note." Defendant contends that this refusal was error because the requested modification "correctly stated the law, was supported by substantial evidence, and was critical to explaining the defense theory." We do not agree.
Unlike lesser included offenses, discussed next, pinpoint instructions must be requested. (People v. Hughes (2002) 27 Cal.4th 287, 361.) "Under appropriate circumstances, 'a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged. [Citations.] But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation]' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99, quoting People v. Bolden (2002) 29 Cal.4th 515, 558), or if it is "potentially confusing." (Moon, supra, 37 Cal.4th 1, 30.)
Here, however, the instruction did not pinpoint the defense, but was actually utterly inconsistent with the defense theory that, in the words of one of the court's instructions, "defendant contends that he did not commit these crimes and that he was somewhere else when the crimes were committed." Because it would be directly and completely antithetical to the alibi defense for defendant to also concede his presence in order to dispute his mental state, the proposed instruction certainly qualified as "potentially confusing." (Moon, supra, 37 Cal.4th 1, 30.)
The Park excerpt dealt with the issue of intent that was also, in part, duplicative of the rest of CALCRIM 800. The instruction as given informed the jury of the specific intent that was required for conviction. The additional language requested by the defense dealt the same issue by illustrating what would not constitute the requisite mental state.
The proposed modification was properly refused for each of these reasons. Moreover, even it is assumed, solely for purposes of discussion, that it was error to refuse defendant's request, reversal would not be required. The jury categorically rejected defendant's alibi defense. There was no evidence that defendant was present with less than the mens rea described by Baisden. Thus, the presumed error would not qualify as prejudicial. (People v. Earp (1999) 20 Cal.4th 826, 886-887.)
There Was No Sua Sponte Duty To Instruct On The Lesser Included Offense of Simple Mayhem
The statutory definition of aggravated mayhem has already been quoted. The statutory definition of simple mayhem is "Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem." (Pen. Code, § 203.) Defendant contends that simple mayhem is a lesser-included offense of aggravated mayhem and therefore the trial court had a sua sponte obligation to instruct the jury on this non-charged offense.
Although the point does not appear to have been expressly decided, it does appear that a violation of section 203 is a lesser included offense of section 205. Several decisions have treated it as such. In People v. Pre (2004) 117 Cal.App.4th 413, 418, the Court of Appeal noted that the defendant was convicted of "simple mayhem (as a lesser included offense of aggravated mayhem)," but it did not formally examine the issue. In People v. Park, supra, 112 Cal.App.4th 61, 65-66, the trial court instructed the jury that simple mayhem was a necessarily included lesser offense of aggravated mayhem, although the correctness of that instruction was not an issue on appeal. And in People v. Quintero, supra, 135 Cal.App.4th 1152, 1167, the Court of Appeal described simple mayhem as the lesser included offense of aggravated mayhem within the context of whether an instruction on imperfect self-defense was required. The conclusion that simple mayhem is a lesser included offense appears consistent with aggravated mayhem being a specific intent crime while simple mayhem requires only general intent. (See People v. Newby (2008) 167 Cal.App.4th 1341, 1347; People v. Park, supra, at p. 64.) The point need not be decided at this time because the Attorney General implicitly concedes its validity. For purposes of this discussion, so do we.
Even without a request, a trial court must instruct on general principles of law that are closely connected to the evidence before the jury that are necessary for the jury's understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The court must instruct sua sponte on a lesser included offense where there is evidence which, if credited by the jury, shows the defendant guilty only of the lesser offense. (People v. Memro (1995) 11 Cal.4th 786, 871.) This obligation exists " 'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.' " (People v. Barton (1995) 12 Cal.4th 186, 194-195.) The trial court must instruct on lesser included offenses even if they are inconsistent with the defense theory elected by the defendant. (People v. Breverman (1998) 19 Cal.4th 142, 157.)
Thus, the issue comes down to whether the evidence could be seen as establishing defendant's guilt of simple mayhem, but not the charged offense of aggravated mayhem. Put more precisely, was there evidence that defendant had only the general intent required for simple mayhem, and not the specific intent required to convict of aggravated mayhem? There was not. This was no " 'random' " attack, but clearly one that was " 'focused,' " " 'controlled and directed' " at a particular victim. (People v. Szadziewicz, supra, 161 Cal.App.4th 823, 831; People v. Quintero, supra, 135 Cal.App.4th 1152, 1162.) The overwhelming weight of evidence was that for months prior to the attack defendant made threats to Baisden, and then, immediately upon his release from prison, he sought her out and fulfilled his threats. The presence of defendant's fingerprints on the knife case is utterly inconsistent with his alibi defense. The jury declined the options of convicting defendant of the lesser included offenses of attempted aggravated mayhem, felony battery, and misdemeanor battery. There is consequently no obvious basis to believe the jury would have accepted another lesser included charge. In light of these circumstances in the record, even if it were possible to conclude that the claimed error did occur, it could not qualify as prejudicial because there is no reasonable probability of more favorable result. (People v. Breverman, supra, 19 Cal.4th 142, 149.)
There Was No Error In The Denial Of Defendant's New Trial Motion
Defendant moved for a new trial on the ground that the evidence was insufficient to support the jury's verdicts. The trial court denied the motion, stating: "[W]ith the Motion for New Trial, the Court is asked to review the evidence supporting the jury verdict of guilty on the counts of torture, mayhem and burglary. And the Court finds that there is substantial evidence upon which a jury verdict of guilty could be returned on those charges." Defendant attacks the denial with the argument that the trial court applied the wrong legal standard in ruling on his motion. He claims that the court's merely concluding that "there is substantial evidence upon which a jury verdict of guilty could be returned" establishes that the court did not independently assess the evidence in its role as a 13th juror. We are not persuaded.
"In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court 'should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.' [Citation.] [¶] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ' "The determination of a motion for new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 523-524; see Porter v, Superior Court (2009) 47 Cal.4th 125, 133 [trial court acts as 13th juror].)
This situation has been encountered before. In People v. Price (1992) 4 Cal.App.4th 1272, the trial court denied a new trial by ruling, "I think the evidence was sufficient, and I think. . . there was enough evidence there for the jury to do what the jury did . . . ." (Id. at p. 1275.) The Court of Appeal rejected the same contention defendant now makes: "[T]he court's exercise of its independent judgment is reflected in its statement that the evidence was sufficient . . . . [¶] . . . Although it would have been preferable for the court to have been more specific, stating it was denying the motion based on its independent weighing of the evidence, its failure to do so and its use of less than artful language cannot be equated with having applied the wrong standard." (Id. at pp. 1275-1276.)
Here the trial court's statement that "that there is substantial evidence upon which a jury verdict of guilty could be returned on those charges" is substantially the same as the trial court in Price stating "the evidence was sufficient." Just as in Price, the trial court here could have employed more explicit language, but we cannot hold that the error claimed actually occurred.
DISPOSITION
The judgment of conviction is affirmed.
Richman, J. We concur: Kline, P.J. Haerle, J.