Opinion
A162098
03-17-2022
THE PEOPLE, Plaintiff and Respondent, v. JULIUS BERRY, Defendant and Appellant.
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. SCN231527, CT19009654
NEEDHAM, J.
Julius Berry appeals from a judgment of conviction and sentence imposed after a jury found him guilty of multiple crimes, including mayhem (Pen. Code, § 203) for burning the back of his girlfriend's neck with a lit cigarette and permanently disfiguring her. He contends the court erred by not instructing the jury on lesser included offenses of simple battery and attempted mayhem. He also contends the court erred in ordering him to pay a $500 domestic violence fund fee. In a supplemental brief, he contends the sentencing minutes and abstract of judgment should be corrected to delete fines and assessments that the court stayed. We will strike the domestic violence fund fee, affirm the judgment, and order correction of the abstract.
All statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
Berry was charged in 12 counts with crimes perpetrated against L.F. in three incidents. Counts 1, 3, 8 and 12 alleged domestic violence with prior domestic violence convictions (§ 273.5, subd. (f)(1)). Counts 2, 4 and 9 alleged assault with a deadly weapon (§ 245, subd. (a)(1)). Count 5 alleged mayhem (§ 203). Count 6 alleged torture (§ 206). Counts 7 and 10 alleged felony false imprisonment (§ 236), and count 11 alleged making a criminal threat (§ 422). The information further alleged that Berry used a deadly weapon (§ 12022, subd. (b)(1)) as to counts 1, 3, 5, 6 and 11, and that he personally inflicted great bodily injury (§ 12022.7, subd. (e)) as to counts 3, 4, 6, 8, 9 and 10.
The court granted Berry's motion under section 995 to dismiss the great bodily injury allegations (§ 12022.7, subd. (e)) as to counts 6 and 9. The matter proceeded to a jury trial.
A. Evidence at Trial
1. Background and Uncharged Offenses
Victim L.F. began dating Berry in 2014, when she was 18 years old. Within a few months, Berry became jealous of her prior relationships and often accused her of being unfaithful. He looked through her phones for evidence of infidelity, broke some of her phones, and punched walls when he was angry.
After about six months of dating, Berry became physically abusive. He often hit L.F. in the face and struck her probably over 50 times during their four-year relationship. In September 2017, he scratched L.F.'s abdomen with scissors, bruised her leg, and caused swelling and bruising to her upper lip.
L.F. photographed many of her injuries and made secret notes to herself on her cell phone. She wanted a record of Berry's abuse because she thought she could die from his attacks.
L.F. did not tell anyone about the abuse, however, because she feared he would retaliate against her with more violence and she hoped the relationship would improve. She covered her bruises or scars with makeup or stayed home until they healed. Her feelings toward Berry included love and fear.
2. September 28, 2017, Domestic Violence (Count 12)
On September 28, 2017, Berry hit L.F. with his hands, scratching her forehead, causing swelling to her eye, and bruising the bridge of her nose.
3. November 20, 2017, Incident (Counts 1-7, Including Mayhem)
On the night of November 20, 2017 - the incident at issue in this appeal-L.F. was at Berry's house in San Francisco, where they possibly consumed alcohol and used cocaine. Berry became upset about L.F.'s prior relationships and angrily accused her of infidelity. He climbed on top of L.F. on his bed, restrained her arms with his legs, and lit a cigarette. He put the lit cigarette near her face, calling her a bitch and accusing her of cheating. L.F. became hysterical with fear. Berry "brais[ed]" the lit end of the cigarette across her face a few times. She tried to wriggle away and turned her face toward the bed. Berry then used the lit cigarette to burn the back of her neck more deeply. (At the time of trial-nearly three years after the incident-the wounds to L.F.'s face had largely healed but she still felt the raised scar from Berry burning her neck.)
Berry next grabbed a pair of scissors from his night table, stabbed L.F.'s left thigh, and stabbed the wall while continuing to call her names.
The following day, L.F. went to her job as a medical assistant in the office of Dr. Jim Savage. Coworkers noticed that her face was scratched and bruised, and they informed Dr. Savage. L.F. claimed she had been mugged by a gang of girls on her way to work; she did not mention that her face and neck had been burned. Dr. Savage examined L.F. and observed a puncture wound on her thigh and bruises and abrasions on her face, arm, and torso. He applied ointments and bandages, and a nurse photographed her injuries. Shortly after Dr. Savage treated her, a coworker observed the burn wound on the back of her neck. It was then that L.F. realized she had a wound from the cigarette burn.
Despite Berry's attack on L.F., she continued in the relationship because she still loved him and hoped the relationship would improve.
4. April 17, 2018, Incident (Counts 8-11)
On the night of April 16, 2018, Berry looked very "high" and acted strangely, accusing L.F. and his brother of belonging to a cult and conspiring against him. The next morning, Berry bound L.F.'s hands and feet with zip ties. He put a sock in her mouth and duct tape over the sock so she could not scream. L.F. became hysterical and tried to tell him to stop, but he threatened to kill her and everyone else in the house. Berry held a cordless drill near L.F.'s temple and threatened to kill her. He "teas[ed]" L.F. by running the drill near her temple for 20 minutes.
After Berry left the room, L.F. broke the zip ties off her wrists, maneuvered herself onto a couch below the front bedroom window, and jumped to the sidewalk below. As she lay on the sidewalk in pain, Berry ran outside and asked what she had done. He picked her up and carried her to his bedroom. He suggested that L.F. call 911 and say she had fallen down the stairs, and she agreed.
Paramedics responded and took L.F. to the hospital, where she told medical personnel she had become dizzy in the bathroom, tripped and fell down a flight of stairs, got up, and fell down a second flight of stairs. X-rays and a CT scan showed she had fractured both of her calcaneal (heel) bones and incurred spinal fractures. The injuries were inconsistent with L.F. falling down stairs but consistent with a fall from a significant height with direct impact on both heels.
At the conclusion of her testimony, L.F. said she had no doubt that Berry had committed all the crimes she had described.
5. Police Investigation
L.F. remained in the hospital for three to four days, returned to Berry's house for three weeks, moved into her mother's house, and then flew to the Philippines to visit relatives and get away from Berry in July 2018. Berry followed her. In mid-January 2019, L.F. returned to the Bay Area to live with her mother. L.F. blocked Berry from her social media accounts and changed her phone number.
On January 23, 2019, L.F. was picked up by her employer, in his car, to go to work; moments later, Berry opened the passenger door and ordered her out of the car. The employer and L.F. drove off. L.F. seemed frightened of Berry and worried throughout the workday.
Later that day, L.F. went to the police station to request an emergency protective order. She met with San Francisco Police Officer Michael Devine and described Berry's abuse, including how he burned her face and neck with a cigarette and stabbed her leg with scissors. Although at times a bit confused as to the dates of the incidents, L.F. said Berry had attacked her 50-100 times. Officer Devine photographed the scar on the back of L.F.'s neck and issued an emergency protective order.
Two weeks later, L.F. obtained a civil restraining order against Berry. Her hope was to keep Berry away from her, but she did not want him prosecuted criminally.
San Francisco Police Sergeant Ramonick Johal reviewed the photographs and reports prepared by Officer Devine and interviewed L.F. on February 11, 2019, and July 2, 2019. He also obtained L.F.'s cell phone, from which a police specialist retrieved L.F.'s photos of her injuries, notes to herself, texts, and instant media messages between L.F. and Berry. The messages reflected Berry's abusive behavior and their tumultuous relationship. Sergeant Johal contacted L.F.'s primary care physician, former employer, friend, and relative, and collected documentary evidence consistent with her depictions of the incidents.
L.F. testified at one point that she did not mention the cigarette burn on her neck when she met with Officer Devine and when she first spoke on the telephone to Sergeant Johal. But L.F. corrected those comments later in her testimony, and it is undisputed that Officer Devine photographed the scar on L.F.'s neck when he first met with her on January 23, 2019.
District Attorney Investigator Steven Tull took a photograph of the scar on the back of L.F.'s neck shortly after trial began. Tull described the scar as "raised" and "approximately seven millimeters," or "just a tad bigger" than the flat tip of a highlighter pen. The photo of the scar, like the photo taken by Officer Devine about two years earlier, showed it to be round or perhaps slightly oval in shape.
6. Expert Witness Testimony
Nancy Lemon, a university professor and director of the Family Violence Appellate Project, testified as an expert in intimate partner abuse. Lemon described the "cycle of violence" that commonly occurs in abusive relationships and a "power and control" wheel that explains how abusers control their partners through threats, isolation, economic leverage, "male privilege," and physical, emotional, and economic intimidation. Lemon further testified that many domestic violence survivors leave and return to their abusers multiple times for various reasons, and that it is common for victims to try to hide evidence of the abuse and forget details of specific incidents. Berry did not call any witnesses.
B. Jury Verdict and Sentence
The jury found Berry guilty on charges pertaining to all three incidents, including the count 5 (mayhem) charge at issue in this appeal and counts 1, 2, 3, 7, 9, 10, and 12. The jury found Berry not guilty on count 8 for domestic violence in April 2018, but guilty of the lesser included offense of misdemeanor domestic battery (§ 243, subd. (e)(1)). The jury deadlocked on counts 4 (assault with a deadly weapon), 6 (torture), and 11 (criminal threat) as to the November 2017 and April 2018 incidents, and the court declared a mistrial on those counts. The jury also found true the sentencing allegation that Berry had used a deadly weapon (scissors) as to count 1.
In a bifurcated court trial, Berry admitted he was convicted in 2012 for domestic violence in violation of sections 273.5 and 243, subdivision (e), for purposes of the section 273.5, subdivision (f) charges.
The court sentenced Berry to an aggregate prison term of 10 years four months. The court imposed restitution fines, assessments, and a $500 domestic violence fee, and then stayed them except for the domestic violence fee. The clerk's minute order recorded these amounts but did not reflect the stay. The abstract of judgment includes the restitution fines and assessments.
This appeal followed.
II. DISCUSSION
A. Absence of Instruction on Lesser Included Offenses
Berry contends his conviction on count 5 for mayhem-based on his burning L.F.'s neck with a cigarette in November 2017-must be reversed because the court did not instruct the jury sua sponte that simple battery and attempted mayhem are lesser included offenses of mayhem. He contends the jury might have convicted him of the lesser offenses, if the jury had been instructed on them, because the jury could have decided that Berry did not burn L.F.'s neck or, if he did, that he did not permanently disfigure her. The argument is meritless.
1. The Crime of Mayhem
Section 203 defines mayhem as follows: "Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem." (Italics added.)
"[C]ase law has 'grafted' on to section 203 the requirement that a disfiguring injury be permanent [citations]; in that regard, 'an injury may be considered legally permanent for purposes of mayhem despite the fact that cosmetic repair may be medically feasible' [citations]." (People v. Santana (2013) 56 Cal.4th 999, 1007 (Santana).) Scars, for example, can constitute permanent disfigurement. (E.g., People v. Romero (2019) 44 Cal.App.5th 381, 387 (Romero); People v. Keenan (1991) 227 Cal.App.3d 26, 35-36, fn. 6 (Keenan).)" '" 'The modern rationale of the crime may be said to be the preservation of the natural completeness and normal appearance of the human face and body.'" '" (People v. Johnson (2018) 21 Cal.App.5th 267, 280-281; see Santana, supra, 56 Cal.4th at p. 1004 [section 203" 'protects the integrity of the victim's person' "].)
Pursuant to CALCRIM No. 801, the jury was instructed on count 5 as follows: "To prove that the defendant is guilty of mayhem, the People must prove that the defendant unlawfully and maliciously permanently [sic] disfigured someone. [¶] Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else. [¶] A disfiguring injury may be permanent even if it can be repaired by medical procedures." Berry does not contend that CALCRIM No. 801 misstates the law.
2. Sua Sponte Duty to Instruct on Lesser Included Offenses
The crimes of simple battery (the willful and unlawful use of force upon the person of another under section 242), and attempted mayhem (an unsuccessful attempt to commit mayhem), are lesser included offenses of mayhem. (See People v. Ausbie (2004) 123 Cal.App.4th 855, 860, fn. 2, overruled on other grounds in People v. Santana, supra, 56 Cal.4th at pp. 1011; see also Bench Notes to CALCRIM No. 801, p. 553.)
A court is required to instruct on lesser included offenses, even if (as here) the defense did not request it, if there was evidence from which the jury could have reasonably concluded that the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 154-155, 162, 177.) In determining whether the evidence met this standard, the court is not to consider the credibility of the witnesses (People v. Tufunga (1999) 21 Cal.4th 935, 944); the evidence may be sufficient to compel an instruction even if it was "less than convincing" (People v. Turner (1990) 50 Cal.3d 668, 690).
The question, therefore, was whether there was evidence from which a jury could reasonably conclude that Berry, on November 20, 2017, did not commit mayhem but did commit battery or attempted mayhem.
3. Whether Berry Burned L.F.'s Neck
Berry first contends the court should have instructed on lesser included offenses because, given the evidence, the jury could have concluded that Berry did not burn L.F.'s neck. Berry points out that L.F. testified the cigarette-burning incident was "kind of a blur," she had been consuming alcohol and possibly used cocaine shortly before the incident, she did not mention being burned by a cigarette the next day when Dr. Savage examined her, Dr. Savage did not note any burn marks in his medical report, L.F. was not thinking of the burn until a coworker mentioned it, and L.F. initially testified that she had not mentioned the burn to Officer Devine or Sergeant Johal.
Berry's argument fails. The prosecutor repeatedly stated in closing argument that the mayhem charge in count 5 was based on L.F.'s testimony that Berry had created a permanent scar on her neck by burning it with a cigarette. If the jury concluded that Berry had not burned her neck with the cigarette as L.F. described, the jury would have concluded not only that there was no mayhem, but that there was no battery or attempted mayhem either. Thus, there was no basis for instructing on battery or attempted mayhem. (Breverman supra, 19 Cal.4th at p. 162.)
Berry argues that the jurors might have found that he had "forcibly touched L.F. by restraining her on November 20, 2017," which would constitute battery rather than mayhem. (Italics added.) But the jurors could not have reasonably made such a finding in light of the prosecutor's insistence that the charge in count 5 was based solely on Berry's use of a cigarette to burn L.F.'s neck. In fact, the information and verdict forms specifically stated that count 5 was based on Berry's permanent disfigurement of L.F.
In any event, based on the evidence at trial, it would not have been reasonable for the jury to conclude that Berry had not burned L.F. with the cigarette. Although the burning incident seemed "kind of a blur" to L.F. at trial-nearly three years after her ordeal-she testified that a coworker noticed the burn wound on the back of her neck the day after the incident and she had "no doubt" Berry had committed all the crimes she described in her testimony. She further explained that she had not revealed the cause of her injuries because she loved and feared Berry. Moreover, L.F.'s testimony was corroborated by other evidence. The photographs taken by Dr. Savage's nurse showed bruises and scratches to L.F.'s arms and torso and two open wounds on the side of her face that look like burns, confirming what L.F. had reported of the incident. The round scar shown in the photographs of L.F.'s neck at the time of trial also seems consistent with a wound caused by a lit cigarette. And there is no question L.F. did inform Officer Devine about that scar because he took a photo of it when she first contacted him in January 2019.
Finally, even if the jury had been instructed on lesser included offenses, there is no indication it would have reached a different verdict on the mayhem count. The jury convicted Berry as to the November 2017 incident on counts 1 and 3 (domestic violence), count 2 (assault with a deadly weapon-scissors), and count 7 (false imprisonment), deadlocking on count 4 (assault with a deadly weapon-cigarette) and count 6 (torture). The jurors' verdicts show they believed L.F.'s testimony and had reservations only as to whether Berry's acts rose to the level of torture or the cigarette constituted a deadly weapon, neither of which was required for the crime of mayhem.
4. Whether Berry Inflicted Permanent Disfigurement
Berry next argues that, even if the jurors found that he inflicted the cigarette burn that resulted in a raised seven-millimeter scar on L.F.'s neck, the scar did not necessarily qualify as permanent disfigurement for purposes of mayhem. He contends the jurors may have convicted him of mayhem, even if they doubted that the scar constituted a permanent disfigurement, merely because they had no lesser alternative and wanted to ensure he suffered punishment for the burning.
The argument is meritless. The evidence was overwhelming that Berry permanently disfigured L.F. The jury was instructed that a disfiguring injury may be found to be permanent even if it can be repaired by medical procedures. The evidence at trial was that L.H. had a raised, seven-millimeter scar on her neck some three years after the incident. Based on this evidence, there was no reasonable possibility the jury would conclude the injury was not a permanent disfigurement.
The scar on L.F.'s neck constituted a permanent disfigurement under the case law as well. As mentioned, the purpose of the mayhem statute is to preserve "the natural completeness and normal appearance of the human face and body" or to "protect[] the integrity of the victim's person." (Santana, supra, 56 Cal.4th at p. 1004.) Disfigurement of the body is something that"' "impairs or injures the beauty, symmetry or appearance of a person or thing . . . [or] renders unsightly, misshapen or imperfect or deforms in some manner." '" (Romero, supra, 44 Cal.App.5th at p. 387.) A victim may be permanently disfigured for purposes of mayhem even if the scar is small, is located on an area of the body that is normally covered by clothing, or can be removed through medical procedures. (People v. Hill (1994) 23 Cal.App.4th 1566, 1574-1575; Keenan, supra, 227 Cal.App.3d 26, 35-36, fn. 6 [scars, inflicted from defendant burning a woman's breasts with a cigarette, and remaining visible at the preliminary hearing three and one half months after the crime, "quite clearly involved a serious permanent disfigurement within the meaning of the [mayhem] statute" and "for the rest of her life serve as a daily reminder of appellant's grotesque assaults"]; Romero, supra, 44 Cal.App.5th at p. 387 ["scars satisfy the disfigurement in mayhem"]; People v. Page (1980) 104 Cal.App.3d 569, 577-578 [forcibly tattooing a woman on her breast and abdomen constituted mayhem because the removal of the tattoos would leave permanent scars].) The scar on L.F.'s neck could not be considered anything but a permanent disfigurement of her body, given that the scar was still visible nearly three years after the burn had been inflicted.
Berry notes in his reply brief that the cases cited by respondent did not involve a claim that the trial court failed to properly instruct on lesser included offenses; he argues that the insufficient evidence standard of review is a higher standard than whether the evidence at trial warranted instructions on the lesser included offenses. (Citing People v. Tufunga, supra, 21 Cal.4th at p. 944; People v. Turner, supra, 50 Cal.3d at p. 690.) Notwithstanding, given the evidence in this case, the jury could not have concluded the prosecution failed to prove permanent disfigurement.
5. Jury Deliberations
Lastly, Berry argues it was "anything but an open and shut case" and there is a reasonable chance the jurors would have convicted him of a lesser included offense if they had the option, because they were unable to reach verdicts on two of the seven charges pertaining to the November 2017 incident, deliberated for about 16 hours over the course of four days, asked questions about great bodily injury, deadly weapons, and torture, and requested readback of some of L.F.'s testimony, including as to the November 2017 incident.
The argument is unpersuasive. The determination of whether to instruct sua sponte was made before the jury deliberations, so Berry's argument pertains to the issue of harmless error. As to that issue, the jury ultimately convicted Berry on eight of the twelve charges, including most of the charges on each of the three incidents, deadlocking or acquitting on charges that required proof of elements not needed for mayhem. It is therefore apparent that the jury found L.F. overall to be a credible witness, and the jury took care in evaluating the evidence and applying it to the law. As our Supreme Court observed in People v. Carpenter (1997) 15 Cal.4th 312, 422: "Rather than proving the case was close, the length of the deliberations suggests the jury conscientiously performed its duty."
B. The Domestic Violence Fund Fee
Berry argues that the trial court erred in ordering him to pay a $500 domestic violence fund fee. Respondent agrees. Although the court did not state the code section that supported the domestic violence fund fee on the record, the clerk's minute order and the abstract of judgment state that the fee was imposed "pursuant to PC 1203.097," which applies by its terms only to criminal defendants who are placed on probation. Because the court sentenced Berry to prison, there was no basis under section 1203.097 to impose the $500 fee. In light of the agreement of the parties to this appeal, we will strike the $500 domestic violence fund fee.
C. Supplemental Brief: Fees and Assessments
In a supplemental brief, Berry contends the record on appeal contains another error as to the fines and fees imposed at sentencing. As of the time Berry filed his supplemental brief, the trial court had not responded to his requests to correct these errors pursuant to section 1237.2.
At Berry's sentencing on January 27, 2021, the trial court imposed $300 restitution fines per felony count and a $150 restitution fine on the misdemeanor count; a $40 court operations assessment per convicted count; a $30 criminal conviction assessment per convicted count; and a $500 domestic violence fund fine. The trial court invited defense counsel to speak to Berry's financial circumstances, and defense counsel replied, "He is indigent." The court then said it would "stay all of the fines and fees, except the $500 domestic violence fund fine." Berry points out that the January 27, 2021, sentencing minutes and abstract of judgment refer to the restitution fines and assessments but does not indicate that they were stayed.
Berry contends that, because the court "orally struck" the restitution fines and assessments, we should order them stricken from the January 27, 2021, sentencing minutes and abstract of judgment. A conflict between the judgment of conviction as orally pronounced by the court and that recorded in the minutes of the proceedings or abstract of judgment is presumed to be a clerical error in the clerk's transcript. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187; People v. Leon (2020) 8 Cal.5th 831, 855.)
The trial court, however, did not strike the restitution fines and assessments; it stayed them.
This court has received a copy of an abstract of judgment and amended minute order filed in the trial court on February 23, 2022, as an apparent response to Berry's request in that court. The amended order provides that Berry pay the $500 domestic violence fee, a court operations assessment of $40 per convicted count, an assessment of $30 per convicted count, and restitution fines. It then states: 'THE COURT STAYS THE COLLECTION OF THE FINES & FEES [WITH] THE EXCEPTION OF THE $500 DOMESTIC VIOLENCE FUND FEE WHICH SHALL BE IMPOSED." The order is consistent with what the trial court had stated orally on the record at sentencing and appears to reflect the court's original intention. On the other hand, the abstract of judgment refers to the restitution fine, $40 court operations assessment, and $30 conviction assessment, but it does not mention the domestic violence fund fee (which we are striking anyway) or reflect the stay of the collection of those amounts. Because the Department of Corrections may rely on the abstract of judgment, we will direct that the abstract be amended to reflect the stay of collection.
III. DISPOSITION
The $500 domestic violence fund fee is hereby stricken. In all other respects, the judgment is affirmed. The abstract of judgment shall be amended to reflect that the trial court stayed collection of the fines and fees.
We concur. SIMONS, Acting P. J., BURNS, J.