Opinion
NOT TO BE PUBLISHED
APPEAL from the judgments of the Superior Court of Los Angeles County. No. BA323415 Curtis B. Rappe, Judge.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant Damien Ross.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant Annie Abbago.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.
GRIMES, J.
Appellants and defendants Damien Ross and Annie Abbago coordinated a brutal attack in their apartment on Joyce O. one evening when she was visiting with the two-year-old daughter she had with Ross. The toddler witnessed the attack, which nearly killed Joyce and left her permanently disfigured. The jury convicted both defendants of attempted premeditated murder and aggravated mayhem. The jury also convicted Abbago of torture and found true the special allegations that Abbago personally used a knife in committing the three violent felonies. Defendants timely appealed, and their appeals were consolidated.
Defendants contend there is insufficient evidence to support the attempted murder and aggravated mayhem convictions, and the court’s imposition of consecutive life sentences violated Penal Code section 654. Abbago also contends the court violated section 654 by imposing knife enhancements on each of her sentences. Ross also contends the court erred in sentencing him without obtaining a supplemental probation report. We affirm the judgments.
FACTUAL SUMMARY
Merlin Chew lived in the apartment above Ross and Abbago. He was alone in his apartment on the evening of May 27, 2007, when he heard a woman’s distressed cries for help. He went downstairs and knocked on the door of defendants’ apartment. Abbago opened the door a few inches, Chew asked if everything was okay, and she said yes. The door opened wider, and Chew saw the backside of Joyce bent over, head down, with her elbows and knees on the floor, the soles of her feet up. Ross was facing Chew, bent over Joyce, restraining her arms. Chew told Ross he would like to have a word with him. Ross got up, came toward the door, Chew turned to walk away, and the two men spoke outside the apartment. Chew had noticed “red matter” on the bed, the floor, and Ross’s arms but testified he thought it was smeared strawberries. Chew told Ross he needed to “get it together, clean up, it doesn’t look good.” Chew testified he believed he had witnessed “some type of domestic situation that did need to be brought under control, ” but he did not call the police. But someone else did, and the police arrived about five to 10 minutes later.
Los Angeles Police Officer Richard Compton was on routine patrol and went to defendants’ apartment in response to a radio call of an “unknown trouble screaming woman” around 8:00 p.m. on May 27, 2007. He and his partner were the first to arrive. From outside the apartment, Officer Compton could hear muffled screams, a baby crying, and a television blaring. Both officers knocked on the door and yelled, “Open the door, ” and “[It’s] the police.” Abbago opened the door and came out into the hallway. Officer Compton saw the door swinging shut, tried to stop it with his hand, felt the door being pulled shut, and heard someone from within the apartment trying to lock the door. His partner kicked the door open. Officer Compton grabbed Ross and yanked him out into the hallway, spinning him around and up against the wall. The hand the officer used to grab Ross felt wet, and he saw it was dripping in blood. His partner handcuffed Ross. Ross said twice, “She did it. It was not me. She did it, ” looking at Abbago.
Officer Compton entered the apartment and saw a baby crying, standing in a puddle of blood, and heard the television on full blast, so loud he could hardly think. After turning off the television, he looked around and saw what he first believed to be a pile of dirty, bloody clothes, but the pile moved, and a woman’s voice cried for help. Officer Compton saw a pillow still over the woman’s head as he approached her, with indentations on both sides as if someone were holding it down over her head. The officer removed the pillow but did not know what to do next, because the woman’s entire body was covered in blood from head to toe.
Joyce’s head was lying on a small pillow. Her throat was slit from ear to ear. She had been stabbed in the mouth and there was a jagged wound that went all the way up to her eye. She had multiple stab wounds in her legs, chest and arms. She was able to tell the officer her name and that she was about to die. She seemed very weak, “just barely holding on, ” and she could hardly breathe, but the officer tried to comfort and reassure her. He called for an ambulance but otherwise felt helpless to do anything other than talk to her, urging her to stay alive for her child’s sake. He saw a locked blade knife in the blood on the floor near her head. Joyce rolled herself over in an attempt to open an airway so she could breathe, and then the officer saw a large butcher knife on the floor under the middle of her back. She was still bleeding when the paramedics arrived and took her away.
After securing the crime scene, Officer Compton entered the bathroom and saw vomit in the sink.
Joyce was the key witness for the prosecution. She was 22, and the daughter she had with Ross was two years old on the day of the attack. Joyce worked as a nurse at a hospital. Joyce and Ross had formed a relationship in September 2003. They lived in Covina at that time. Their daughter was born in January 2005. Joyce and Ross stopped seeing each other on a regular basis a couple months later, but they shared custody of their daughter and saw each other each weekend when Ross took the child to care for her until Joyce got off work and picked her up on Sunday evenings. She and Ross maintained this child custody arrangement for six months. Then Ross told Joyce he was dating Abbago and no longer wanted custody of their daughter on the weekends. Joyce filed for and received a child support order in the summer of 2006. Ross then filed for a family law child custody order. Joyce and Ross became embroiled in custody disputes and had to attend many court hearings.
Joyce first met Abbago in November 2005 when she went to Ross’s place of work to drop off their daughter for a visit with Ross. Joyce introduced herself to Abbago and asked Abbago if she knew that Ross was trying to reunite with Joyce. Abbago looked shocked, and Ross grabbed Joyce by the shoulder and pulled her away. Joyce continued telling Abbago “things that [Ross] had been doing for the past three months.” Ross pulled on Joyce’s shirt and repeatedly told her to stop making a scene. Joyce told him to let her go, he finally did, and Joyce continued trying to talk to Abbago. After that, Ross obtained a restraining order to prevent Joyce from coming in contact with him at his place of work and at home.
Ross had moved from Covina to Los Angeles in July 2005, and Joyce lived in Fontana at that time. Joyce saw Abbago a few times between November 2005 and May 2007, when Joyce dropped off and picked up her daughter, and they spoke over the telephone to make those arrangements. Joyce believed there was no animosity between them. That changed on May 22, 2007.
Ross had not shown up that day to return their daughter to Joyce in Fontana as scheduled. Joyce called him, upset, and he told her that he was not coming to Fontana. She proposed to meet Ross elsewhere so she could get her daughter, and they met at Union Station. Ross asked Joyce to give him a ride home, and she agreed. Joyce parked across the street from Ross’s apartment, far enough away to comply with the restraining order. Joyce was unfamiliar with the neighborhood and asked Ross for directions to the freeway. There was no pen in the car, so Ross went inside for a few minutes and returned holding an index card.
He stood next to the driver’s seat and showed the directions to Joyce through the open car window, then suddenly began to choke her with both hands around her throat. He told her to just relax, and she did for a moment, until she heard her daughter crying from the back seat. Then she began to struggle. She was holding his hands, trying to get her thumb underneath for air, but his hands were much bigger than hers. He stopped choking her before she passed out. Joyce tried to close the car window but Ross’s arms were already in the car as the window was coming up, and he was able to reach in and open the car door.
Ross tried to push Joyce over so he could sit in the driver’s seat, but she was strapped in with the seat belt. He managed to put the car in gear, and it moved forward. Joyce slammed on the brakes and protested. Ross told her to be quiet, and she quieted down. He apologized and said he wanted to talk to Joyce, and she agreed, so he went around the car and got back in the front passenger seat. They drove a distance down the street, out of sight of Ross’s apartment building.
Ross and Joyce talked in the car for a few hours, mostly Ross telling Joyce about his life. It grew late, and it was dark outside. He told her that he and Abbago were not getting along. He said he wanted to break up with Abbago, but he let her stay in his apartment because she had nowhere else to go. He said maybe someday he and Joyce could get back together. They decided Joyce would not tell anyone about his attack because she did not want him to go to jail and she did not want her daughter’s father to be in jail. Their daughter fell asleep, and Ross and Joyce had sex in the car. Ross then returned to his apartment.
On the way home, Joyce changed her mind and decided to go to the hospital, knowing as mandated reporters, the hospital personnel would call the police when Joyce told them about Ross’s assault. She went to Kaiser Fontana, told a nurse about the attack, and later reported it to a Fontana police officer. She told the officer everything, except that she had sex with Ross. The police officer testified that Joyce said she wanted to press charges against Ross.
The next day, Joyce called Ross to tell him she had made a police report. He seemed calm and understanding. However, Abbago called Joyce that day during Joyce’s lunch break at the hospital where she worked, saying Ross had told her everything. Abbago initially feigned concern for Joyce but then repeatedly yelled at Joyce that she was “foul.” Joyce was so disturbed by the call that she had to go home from work. Ross called Joyce back to apologize for Abbago’s bad behavior. He told Joyce he had broken up with Abbago and had no friends. Feeling sorry for him, Joyce agreed to meet Ross for dinner that evening. After dinner at Chili’s, she offered to give him a ride home. They stopped on the way at a Wal-Mart to get Motrin for Ross’s headache.
Upon returning to Ross’s apartment, Joyce parked in the area where she had parked two nights before, again to avoid violating the restraining order, and again, she and Ross talked in the car a long time. This time, they had oral sex. Ross told Joyce that Abbago was still in the apartment because she had not found another place to stay, and she was not letting him into the apartment. Ross and Joyce stayed in her car all night. During the night, from time to time, Ross sent text messages and sometimes left the car to make a phone call. In the middle of the night, Joyce saw Abbago walking alone in the middle of the street. When Ross saw her, he cursed, got out of the car, and went to talk to her. She walked away, and he got back in Joyce’s car. At daybreak, he went into his apartment.
The next day, Joyce met Ross so he could have custody of their daughter for the weekend. They made plans to go to the beach the following day, a Sunday. Joyce arrived at Ross’s apartment mid-afternoon on Sunday. Ross met her in the street with their daughter and invited Joyce into his apartment. Joyce had been out clubbing until 4:00 in the morning, and her sister had awakened her at 8:00 a.m. to go shopping for a birthday gift for Joyce’s nephew, so she soon fell asleep on the bed in Ross’s tiny apartment, the only place to sit. She awoke to the rustling sound of plastic, opened her eyes, and saw Ross straddling her and lowering an open plastic bag over her face.
Joyce swung her right fist at Ross, kicked him with her right leg, and sat up. She said, “Man, whatever is wrong with you I can’t help you, ” and Ross paced back and forth in the room, repeating, “I’m sorry, sorry, sorry, sorry, sorry, I didn’t mean to do that.” He told her his head had hurt him for a week, and he had thrown up in the sink as she slept. Joyce, a nurse, took his pulse at his wrist and it was “super high.” She urged him to go to the hospital, offering to drive him there and keep their daughter if he were to be admitted, but he just kept pacing, for five to 10 minutes. Then he told her to wait while he went outside to get some air.
Ross was gone about five minutes. Upon his return, he resumed pacing back and forth, checking his phone and pushing buttons on his phone. He complained it was hot and went outside again for a few minutes, and again, upon returning to the apartment, he continued pacing, checking his phone and pushing buttons on his phone. Suddenly, he said he was cold, put on a sweater and went back outside. He came back in after a few minutes, sat next to Joyce on the bed, and leaned against her right shoulder as he wrapped his arms around her and held her arms locked behind her back. Ross twice told Joyce to just relax.
Joyce looked up and saw Abbago standing less than a foot away, directly in front of her. Abbago was smiling at Joyce. She said, “Hi, Joyce.” Joyce saw the butt of a knife in Abbago’s hand behind her back. Joyce stood up but Ross still held her arms in his arms behind her back, like a wrestler’s armlock. Abbago stabbed Joyce on her neck, on the left side, then again on the right side. Joyce was unable to struggle out of Ross’s grasp. Blood was flowing from her throat, and Joyce was catching it in her own hands. She asked Abbago, “What did I do to you? What did I ever do to you?” Abbago’s only response was to stab Joyce in the abdomen, many times. Joyce yelled, “911. Somebody call for help. I’m dying. They’re killing me.” Abbago cursed and said, “[T]his bitch is loud.” Ross told Abbago to turn up the television. As Joyce listened to the loud television, Abbago continued to stab her abdomen and legs while Ross held Joyce’s arms behind her back. She could hear Ross breathing behind her back. Joyce heard Abbago say, “Hold her, hold her, ” and Ross tightened his grip on Joyce’s arms as Abbago stabbed her.
Joyce could see Abbago’s eyes and the knife as she repeatedly stabbed Joyce with it. Joyce looked down, saw two holes in her left thigh and blood all over the floor. She still struggled. It was hard to remain standing, and she slipped on her own blood and fell to a kneeling position. Ross stayed right behind her, holding her arms behind her back as she struggled to get free. Abbago put the knife to Joyce’s face and started cutting down the left side of her face to the left of her nose. Joyce pulled her head back, the knife came out a little, and Abbago pushed it in again toward Joyce’s nose and the middle of her lip. She then put the knife inside Joyce’s mouth. Joyce bit down on the knife as hard as she could and did not release her grip. She broke free of Ross’s grasp and crouched on the floor on all fours.
Joyce reached for the knife with her left hand and heard Abbago say, “Get the knife, get the knife.” Ross grabbed Joyce’s left wrist, but she clutched the knife. As Ross struggled to take the knife from her left hand, Joyce felt something stabbing her upper back and the back of her neck. Abbago was using a knife that Joyce had seen on the stove earlier that afternoon. Abbago grabbed Joyce by the back of her hair and started slamming her head into the floor, many times. Joyce still struggled and yelled for help. She saw Ross take a small pillow from the bed and put it under her head. Then she saw him take a larger pillow before he turned her head down toward the small pillow, put the larger pillow over her head, and pushed down on her head. Joyce tucked her chin down toward her chest for air. She was still on all fours, still clutched the knife in her left hand, yet she was immobilized. She heard a knock at the door.
Joyce felt the pressure on her head release. She turned her head enough to see the door with one eye. Joyce could hear her daughter crying. Abbago opened the door, and Joyce saw a man standing there. The man asked, “Is everything all right in here?” She tried to yell for help but the sounds she made were muffled and mumbling. Joyce heard Ross say, “Don’t worry about it, I’ll take care of it.” Then she heard the door shut. Joyce saw her daughter on the bed with arms outstretched toward her, crying, “That’s my mommy, ” and then Ross brought the white pillow down over her head again and pressed hard. Again, she tucked her chin toward her chest, and she was able, just barely, to continue breathing. Then she heard the door open and shut, followed by knocking at the door, and she heard someone say it was the police. The pressure came off her head but not the pillow.
Joyce heard what sounded like defendants struggling with the police. She turned herself onto her side. A police officer asked her where she got the knife and who did this to her. She told him they both did it to her. She managed to stretch out her arm and a leg in the rescue position to get the best airway, focused on breathing, and tried to answer the police officer’s questions. She heard sirens, the paramedics arrived, moved her onto a gurney, gave her an oxygen mask, and wheeled her into an ambulance. She stayed focused on her breathing but was aware of arriving in the emergency room and seeing the shocked and scared faces of the hospital personnel. They sat her up so she could get more air, and she felt her lips hanging from her face.
Joyce was in the hospital for seven days. At the time of trial, a year and a half after the attack, Joyce still had scars all over her body. She had a two-inch long scar on the front of her lower leg; two more two-inch long scars on each thigh (totaling four on her thighs); one near her diaphragm; two on her right side; one on the abdomen; four on her back; three on her neck, including a six- to eight-inch scar to the left of her throat; a three-inch scar on her armpit; an inch and a half long scar on her left arm; and others. On her face, she had scars by an eyebrow, below her right eye, a long one from the left of her nose to the middle of her left cheek, between her nostrils (making her nose crooked), and one from above the lip all the way to the left cheek. From having the knife in her mouth, she suffered scars inside her mouth and near her left ear. Her left hand was scarred from holding the knife, and her pinkie finger is never straight. She had a collapsed lung and damage to her liver and intestines.
The evidence summarized above is substantial and supports the jury’s verdicts as discussed more fully below, so we only briefly mention the defense testimony. Abbago’s mother testified that Abbago is a licensed vocational nurse. Ross testified, in large part corroborating Joyce’s testimony. He described their meeting at Union Station to exchange custody of their daughter, Joyce giving him a ride to his apartment, talking with her in the car for hours, and having sex in the car. Ross testified Joyce “liked some rough type stuff, you know, pull your hair, choke me type stuff.” Ross grabbed her around the neck twice at Joyce’s direction. Ross testified that Joyce called him the next day and told him she made a report at Kaiser “about some kind of like choking or something and so I--I just initially knew that she had to explain the freaky sex that went on in the car.”
He described the meal at Chili’s, the stop at Wal-Mart for Advil, Joyce giving him a ride to his apartment, their talking in the car most of the night, his receiving many text messages, Abbago appearing in the street, his getting out to speak with Abbago, and having oral sex with Joyce in the car. He described Joyce coming over on Sunday for the custody exchange, coming into his apartment, falling asleep, and his throwing up in the sink as she slept. Abbago had told him she knew he had sex with Joyce, and he had doubts about whether it was a good idea to have his baby’s mother visiting the apartment where he lived with his girlfriend.
Three or four times, he told Joyce he needed to go outside for air, so he could exchange text messages with Abbago. Ross was communicating with Abbago by phone as well as through text messaging. Among the text messages that Ross and Abbago exchanged between 5:30 and 7:33 p.m. were three sent in the three-minute time span between 7:30 and 7:33 p.m. The first was from Ross to Abbago: “Small problem”; her reply: “What is it?” and his response: “Come in here and help me.”
Ross testified he was surprised when Abbago returned home. The two women exchanged angry words, but Ross kept his head down and covered his face until he heard a “pop” and saw the women wrestling on the floor. Joyce had a knife, and Abbago was trying to get it out of her hand. Ross tried to get the knife but failed. Chew opened the apartment door and entered as Ross was still struggling with Joyce to get the knife. Ross told Chew he was shocked to see Chew in his apartment, but he did not ask Chew for help or to call 911 because “at that point it wasn’t a scenario like 911.” As he tried to pry the knife out of Joyce’s hands, he saw a shot of blood go across his face and hit the wall. He heard the police knock at the door and saw Abbago leave the apartment. He saw only a little bit of blood on the floor, like from a nosebleed. He never saw Abbago stab Joyce, he never saw a knife in Abbago’s hands, and he did not see any injuries on Joyce as he struggled with her. Ross denied doing anything wrong other than use bad judgment being with two girls.
DISCUSSION
1. Counts 1 and 4 are supported by substantial evidence.
Both defendants contend there is insufficient evidence to support their convictions for attempted first degree murder (Pen. Code, §§ 664 and 187, subdivision (a); count 1) and aggravated mayhem (Pen. Code, § 205; count 4). “ ‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ ” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa); accord, People v. Staten (2000) 24 Cal.4th 434, 460 [“ ‘critical inquiry’ ” is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt].) We must confirm that the evidence supporting the verdict is “ ‘reasonable, credible, and of solid value, ’ ” but refrain from reweighing the evidence and substituting our evaluation of the credibility of witnesses for that of the trier of fact. (Ochoa, at p. 1206.) This same standard applies whether the evidence is direct or circumstantial. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) Under this deferential standard of review, the record supports defendants’ convictions of attempted first degree murder and aggravated mayhem.
A. Count 1--attempted first degree murder
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) Moreover, the specific intent to kill element requires a showing of express malice; implied malice is insufficient to support an attempted murder charge. (People v. Swain (1996) 12 Cal.4th 593, 605.) Since direct evidence of intent is often lacking, circumstantial evidence may be sufficient to establish the requisite intent. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)
Here, there was both direct and circumstantial evidence of intent to kill, premeditation and deliberation. During the afternoon of May 27, 2007, Ross and Abbago formed and executed a plan to ambush and kill Joyce. First, Ross tried to smother Joyce with a plastic bag as she slept. While he tried to psych himself up for that attack, he apparently became so nervous that he threw up in the sink. After Joyce fought off Ross’s attempt to suffocate her, she noticed his pulse was racing, and he paced nervously in the apartment, leaving periodically to phone and send text messages to Abbago. Finally, Ross asked Abbago to come help him, and within minutes, Abbago was standing in front of Joyce with a smile on her face, holding a knife behind her back. When Ross first pinned Joyce’s arms behind her back, he told Joyce to stay calm, the same thing he had said to her when he tried to strangle her in her car a few days before. He held Joyce’s arms pinned behind her back, preventing her from defending herself against Abbago’s attack, while Abbago repeatedly stabbed Joyce. Abbago, a nurse, knew where to stab Joyce to hit the vital organs, and she succeeded in stabbing Joyce in the lungs, liver, and intestines, and she stabbed Joyce many times where major arteries are found in the neck and legs.
The manner of Abbago’s attack with a knife, stabbing Joyce repeatedly in the most vulnerable parts of her body, is strong evidence that Abbago had a specific intent to kill. There is strong evidence of Ross’s intent to kill from the manner of attack, as well. When his first attempt to suffocate Joyce failed, he called Abbago for help and held Joyce’s arms behind her back throughout Abbago’s savage attack, tightening his grip as Abbago stabbed Joyce in the abdomen and legs. When Joyce still feebly struggled, Ross tried twice to smother her with a pillow, first before Chew’s knock on the door interrupted him, then again after Chew left, until the police arrived at the scene.
There was strong evidence that Ross and Abbago each had a strong motive to kill Joyce. Ross had been locked in a custody battle with Joyce over their daughter that began with Joyce obtaining a child support order, caused Ross and Joyce to make many, sometimes contentious court appearances, and included Ross obtaining a restraining order against Joyce. Ross was at risk of losing the custody battle after Joyce reported him to police for choking her in her car. As for Abbago, Joyce had humiliated her at Ross’s workplace and had sex with Ross twice in the week before the murder attempt, which so enraged Abbago that she called Joyce at work and yelled into the phone repeatedly that Joyce was “foul.”
The jury had sufficient, credible evidence before it on which to find both defendants intended to kill Joyce and premeditated and deliberated on the means to do so. Abbago argues the evidence only supports a second degree murder or involuntary manslaughter conviction. First, we disagree that a reasonable jury might find Abbago acted in a sudden heat of passion; the only reasonable view of the evidence is that Abbago acted with cool deliberation. Even if we were to conclude the evidence might support a conviction of manslaughter or second degree murder, we could not reverse the judgments. “[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” (People v. Farnam (2002) 28 Cal.4th 107, 143; Ochoa, supra, 6 Cal.4th at p. 1206.)
B. Count 4--aggravated mayhem
Defendants both contend there is insufficient evidence supporting the required specific intent to maim. We disagree.
Aggravated mayhem requires proof of a specific intent to “cause the maiming injury.” (People v. Ferrell (1990) 218 Cal.App.3d 828, 833 (Ferrell); People v. Newby (2008) 167 Cal.App.4th 1341, 1347.) “ ‘Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [Citations.]’ [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.” (Ferrell, at p. 834.)
The statute provides in pertinent part that “[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.)
Facts showing a deliberate, focused attack on the victim, as opposed to a random burst of violence, may suffice as evidence of the requisite specific intent for mayhem. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831 (Szadziewicz) [“ ‘[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”].) Here, the circumstances show that Abbago directed a calculated attack on Joyce’s face as Joyce knelt on the floor, unable to move from loss of blood and Ross’s grip on her arms. At this point, Abbago had already stabbed Joyce many times in vital organs and other vulnerable places likely to kill Joyce; but apparently, as the prosecutor argued, Abbago wanted not only to kill her rival but also to make her ugly and disfigured in her last moments of life and eternally in death.
There is substantial evidence that Ross aided and abetted Abbago in the aggravated mayhem. “The ‘act’ required for aiding and abetting liability need not be a substantial factor in the offense. ‘ “Liability attaches to anyone ‘concerned, ’ however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal.” [Citation.]’ [Citation.] ‘It has been held, therefore, that one who is present for the purpose of diverting suspicion, or to serve as a lookout, or to give warning of anyone seeking to interfere, or to take charge of an automobile and to keep the engine running, or to drive the “getaway” car and to give direct aid to others in making their escape from the scene of the crime, is a principal in the crime committed. [Citations.]’ ” (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743-744.) Ross was much more than “concerned”; he significantly participated in the aggravated mayhem by keeping Joyce’s arms pinned behind her back after she slid to a crouch on the floor while Abbago sliced her face and stuck the knife in her mouth.
The evidence is more than sufficient to support the jury’s finding that both Ross and Abbago had the specific intent to inflict permanent, debilitating injury on Joyce. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1163 [repeated cutting a person’s face constitutes sufficient evidence of a specific intent to maim]; People v. Park (2003) 112 Cal.App.4th 61 [concentrated attack on vulnerable head and face sufficient circumstantial evidence of specific intent to maim].)
A defendant may properly be found to have had both the intent to kill and the intent to maim or cause serious injury arising from the same course of conduct. (Szadziewicz, supra, 161 Cal.App.4th at p. 833; accord, Ferrell, supra, 218 Cal.App.3d at p. 834.)
2. The trial court did not err in imposing separate sentences on the attempted murder, mayhem and torture convictions under Penal Code section 654.
Penal Code section 654 precludes multiple punishments for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the “intent and objective” of the actor. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. (People v. Perez (1979) 23 Cal.3d 545, 551.) If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.)
In sentencing Ross and Abbago, the trial court imposed consecutive life sentences for the attempted murder and aggravated mayhem convictions. The court imposed a concurrent life sentence on Abbago for the torture conviction As a general rule, the sentencing court determines the defendant’s “intent and objective” under section 654. (See, e.g., People v. Coleman (1989) 48 Cal.3d 112, 162.) “[T]he protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability.” (Neal v. State of California, supra, 55 Cal.2d at p. 20.) We review the court’s determination of defendants’ separate intents for sufficient evidence in a light most favorable to the judgment, and presume in support of the court’s findings the existence of every fact the trier could reasonably deduce from the evidence. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
There was sufficient evidence for the court to conclude defendants harbored divisible intents in committing separate crimes. This is not a case where one volitional act gave rise to multiple offenses. Rather, defendants acting in concert first tried to kill Joyce. When they had her on her knees, unable to move, Abbago then sliced and carved Joyce’s face, not to kill her but to disfigure her cheeks, nose and mouth, while Ross maintained his grip on Joyce’s arms. After that, Ross tried to smother Joyce with a pillow. Throughout the knife attack, Abbago exhibited her vengeful and sadistic intent to put Joyce in extreme pain and suffering, from the moment she stood smiling before Joyce, throughout the assault on her neck, abdomen, and legs; the slicing of Joyce’s face from eye to cheek, nose, lip and inside her mouth; when she grabbed Joyce by the hair and slammed her head against the floor; and finally, as Joyce lay immobile in pain, when Abbago grabbed the kitchen knife and viciously stabbed Joyce in the back.
In People v. Harrison (1989) 48 Cal.3d 321, a multiple sex crime case, the Supreme Court found the defendant harbored separate intents to obtain gratification with each sexual penetration he committed. “Harrison determined criminal acts committed pursuant to independent multiple objectives may be punished separately even if they share common acts or are part of an indivisible course of conduct.” (People v. Surdi (1995) 35 Cal.App.4th 685, 689.) All of Abbago’s assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. Ross aided and abetted Abbago by pinning Joyce’s arms behind her and telling Abbago to turn up the volume on the television to drown out the sound of Joyce’s cries for help. Twice Ross tried to finish off the killing by smothering Joyce with a pillow, first before Chew interrupted and a second time after Chew left. Defendants “ ‘should... not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, [they] voluntarily resumed... assaultive behavior.’ [Citation.]” (People v. Trotter (1992)7 Cal.App.4th 363, 368.)
Abbago separately argues the trial court violated Penal Code section 654 by imposing one-year sentences for the knife enhancements on counts 1, 4 and 5. Respondent cites the split in authority among the courts of appeal as to whether section 654 applies to enhancements and the absence of Supreme Court authority resolving the issue. We do not need to decide whether section 654 applies to the knife enhancements here. Assuming, without deciding, that section 654 does apply, it would not prohibit the additional sentences for the knife enhancement because of Abbago’s divisible intents.
Authority cited by Abbago confirms this. (See, e.g., People v. Reeves (2001) 91 Cal.App.4th 14, 57 [“In the absence of any evidence making the assault... divisible [citation], the trial court should not have imposed two... enhancements”].) Similarly, the court in People v. Arndt (1999) 76 Cal.App.4th 387 upheld imposition of multiple great bodily injury enhancements where there were three victims, finding section 654 bars multiple enhancements only “ ‘when there was a single act committed against a single victim.’ ” (76 Cal.App.4th at p. 396.) Here, while there was only one victim, the trial court’s finding that Abbago committed three separate acts with three separate intents, to kill, to maim, and to torture, supports the imposition of multiple enhancements consistent with section 654.
3. The court did not err by sentencing Ross without ordering a postconviction probation report.
Ross’s probation report was prepared six months before sentencing. Ross waived the argument that the court should have ordered a postconviction report by not asking the trial court to order a supplemental probation report, not objecting to the imposition of sentence without a new probation report, and by agreeing before sentencing there was no legal cause why judgment should not be pronounced. (See People v. Begnaud (1991) 235 Cal.App.3d 1548, 1555-1556.) In any event, the trial court considered Ross’s sentencing memorandum which argued Ross was eligible for probation and should be granted probation. The trial court presided over the whole trial and listened to the arguments of counsel favoring mitigation. The court acknowledged Ross’s various arguments in favor of mitigation but found “the seriousness and circumstances of the crime in comparison [with] other like crimes are extremely aggravating in this case.” It is inconceivable to us that a supplemental probation report could tell the trial court anything the court did not already know before making the sentencing choice to deny Ross probation.
DISPOSITION
The judgment is affirmed.
We concur: FLIER, ACTING P. J., O’CONNELL, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.