Opinion
F072490
10-25-2017
THE PEOPLE, Plaintiff and Respondent, v. SARAI ALAVEZ, Defendant and Appellant.
Patricia Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, William K. Kim, and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF155467A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Patricia Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, William K. Kim, and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Sarai Alavez was convicted after a jury trial of multiple felonies including torture (Pen. Code, § 206), with enhancements for personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)), and personal infliction of great bodily injury on a child under the age of five years (§12022.7, subd. (d)). The victim was Alavez's two-year-old daughter, B. Alavez and her two daughters had been living with Haroon Pimentel and Kathy Yoval. According to Alavez, Pimentel and Yoval chastised her for not sufficiently disciplining the two children, and thereafter committed numerous horrific acts of "discipline" on B., and inflicted grievous injuries on B. and less serious injuries on B.'s older sister. Alavez admitted that she did not intervene or protect the children, and participated in these acts. Alavez was sentenced to life in prison with the possibility of parole for torture plus seven years for the enhancements.
All statutory citations are to the Penal Code unless otherwise indicated.
On appeal, Alavez contends the term imposed for the great bodily injury enhancement must be stricken since it is an element of torture. Based on the statutory language of the offense and the enhancement, we are compelled to agree. We also order correction of the abstract of judgment. We otherwise affirm the judgment.
FACTS
Alavez is the mother of two daughters: B. (born December 2011) and N. (born July 2008). At some point in March 2014, Alavez and the children moved into an apartment with Pimentel and Yoval. The family lived there until the investigation into the instant case began on June 12, 2014.
On March 6, 2014, Alavez took B. to an examination at a pediatric clinic. B. was constipated and prone to urinary tract infections, but she was otherwise healthy. The pediatric staff prescribed a high fiber diet and did not observe any type of physical injuries on the child. Alavez brings B. to the hospital
At 4:45 a.m. on June 12, 2014, Bakersfield Police Officer Louis Rodriguez was in the emergency room at Kern Medical Center. He was attending to an arrestee when he noticed nurses escorting Alavez from the general admissions area. Alavez was carrying B. in her arms, and the two-year-old child "almost appeared lifeless." Officer Rodriguez called for assistance and other officers responded to the emergency room. They observed and took photographs of B.'s injuries as she was being treated by the medical staff.
B. was limp, nonverbal, very lethargic, and not responsive to pain. Her entire body was covered with numerous open wounds, bruises and lacerations, including on her face, back, feet, buttocks, and anus. The abrasions and bruises were in various stages - the more recent bruises were purple, while the older ones were brown, yellow or green. The left side of B.'s face was so severely bruised that it was dark purple and green.
B.'s genital area was swollen and bruised, it was dark red and purple, and there were tears and bleeding inside her vagina and rectum. There were cigarette burns on the child's hip and wrist, and several of B.'s fingernails were missing. There were bald spots on the child's head, consistent with her hair being pulled out.
B. had one broken rib, and was diagnosed with sclerosis in her spine, consistent with scarring on the cervical vertebrae and compression of her spine. There was a puncture wound on her leg consistent with being bound with plastic tape and hit with a metal hanger.
A nurse described B.'s overall condition as "cachectic," which meant "poor health, malnutrition, physical wasting of the body." B. was unable to breathe without assistance, and she was immediately placed on a breathing tube. She also received blood transfusions. Her abdomen was distended and very rigid. The blood tests showed she was anemic, which was likely the result of blood loss. There was some hemorrhaging in her frontal scalp, under the skin but above the bone.
B. was suffering from "devascularization," which was a lack of blood supply to her intestines. B. was taken into surgery, where physicians removed 80 centimeters of nonfunctioning "dead intestines" from her small bowel, and 700 milliliters of fluid and blood from her abdomen. During the surgery, the medical staff observed areas of bruising on the bowel consistent with blunt force trauma.
The initial investigation
When Alavez arrived at the hospital with B., she told the hospital staff that B. had fallen down three weeks earlier.
As B. was being treated at the hospital, an officer asked Alavez what happened to B. Alavez said B. had fallen down the stairs three weeks earlier. The officer pointed out the coloration of B.'s bruises, and asked Alavez why she waited so long. Alavez said she wasn't able to make an appointment with a doctor. When the officer asked additional questions, Alavez shrugged her shoulders. Her face lacked emotion and she had a blank stare. She did not ask about B.'s condition or what the doctors were doing for her.
Dr. John Kinnison, a pediatric hospitalist, determined the entirety of B.'s injuries resulted from nonaccidental trauma. The injuries on her back were consistent with an adult stepping on her, and the lacerations on her hands and legs were consistent with being bound and beaten. Nurse Janie Salazar similarly concluded B.'s injuries had been physically inflicted. Examination of N.
Later on June 12, 2014, a nurse examined B.'s older sister, N. N. was not as seriously injured as B., but the five-year-old child had multiple purple bruises on her back and a laceration on her nose.
ALAVEZ'S PRETRIAL STATEMENTS
Alavez was interviewed at the police department about B.'s condition. She was advised of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and she agreed to answer questions. There were two separate interviews, and the recordings of both interviews were introduced at trial.
The first interview
At the beginning of the first interview, Alavez repeatedly said she had never harmed her children and just spanked them a few times. Alavez said that only Pimentel and Yoval took care of the children when she was not at the apartment. The officer doubted Alavez's statements and confronted her with the seriousness of B.'s physical injuries, including the broken rib, multiple bruises, cigarette burns, and the tears in her vagina and rectum. Alavez said she did not know how these things happened, and she did not do these things to B. Alavez said that B. had stomach problems, and B. might have a diaper rash from urinating on herself.
As the interview continued, Alavez claimed she noticed some of the injuries and that B. was losing weight, and implied that these things might have happened when Yoval and Pimentel were watching the children. Alavez said she asked Yoval about some of the injuries, and Yoval said that she did not know anything about them. Alavez further claimed she told Yoval that she was going to take B. to the doctor, but Yoval told her not to because Yoval did not want the police around the apartment. Alavez also claimed that she noticed B.'s fingernails were missing. She asked Yoval about this, and Yoval said that B. pinched herself and bit off the nails.
After further questioning, Alavez said that Pimentel and Yoval always told her that she did not know how to punish her children. Alavez said that Pimentel and Yoval were not capable of harming B. because they had children of their own.
The first interview ended with the officers advising Alavez that she would not be allowed to see her children until they figured out what happened, and they were going to search the apartment.
The second interview
In the second interview, which apparently occurred shortly after the first interview ended, Alavez became distraught after learning about seriousness of B.'s condition and intestinal surgery, and that the child could die. Alavez admitted that Pimentel and Yoval used physical force to discipline and punish B., she sometimes participated in the use of physical force, and she gave permission to the Pimentel and Yoval to punish B. Alavez insisted she did not give them permission to do things to the children "to this extreme."
As she started to disclose how Pimentel and Yoval abused the children, an officer advised Alavez that he had already read the Miranda warnings to her, and he was going to read the warnings to her again. After the second advisement, Alavez said she understood her rights and continued to answer questions.
Alavez said that Pimentel and Yoval used physical force to punish B. for crying, soiling herself, always wanting to eat, and not sleeping at night. Alavez said Pimentel would "crush[]" B. by stepping on her back while she was lying on the floor. After "crushing" B. with his foot, Pimentel would tie B.'s hands and legs together with a handkerchief to prevent her from eating because the child was always asking for food.
On about four occasions, Pimentel tied B.'s legs together, then latched her legs to a doorknob, tied her hands together with tape, and taped her mouth because she was screaming and crying. The child was frequently restrained for hours in the garage while she was bound and gagged. Pimentel would "crush" B.'s back with his foot if she fussed or tried to break free.
Alavez said Pimentel hit B. with a stick about five times. He once hit her so hard that the stick broke. Yoval hit B. with a clothes hanger. Yoval also picked up B. by her hair while the child's limbs were bound, which resulted in B.'s hair being pulled out.
Alavez admitted that she also hit B. with a stick, and tied up B.'s arms and legs two or three times.
Alavez said both Pimentel and Yoval had choked B., and forced the child to eat "really hot" chili peppers and chew the seeds.
Alavez described another form of "punishment" where Pimentel made B. wear a backpack weighted with concrete blocks, and forced her to exercise by stepping up and down.
Alavez said that in the few months they had lived with Pimentel and Yoval, "if [B.] wasn't tied up or wasn't in the corner, she had to be exercising." Alavez admitted she saw Pimentel and Yoval inflict this abuse on B., and she did not intervene.
Alavez said her older daughter, N., was not punished as much as B. Pimentel had spanked N. "really hard," N. was once tied up, and Pimentel forced N. to eat two hot chili peppers.
Alavez said that Pimentel warned her against disclosing what happened because he had a prison record, he had already been through this with his older son, and the police might take Alavez's children. They did not want Yoval's children removed from the apartment. Pimentel said he would tell N. what to tell the police, and they all had to tell the same story.
Search of the residence
The officers searched the apartment. Alavez accompanied the officers and pointed out several items consistent with the punishment inflicted on B. There was a backpack containing a weight; several sticks, tree branches, and a broken stick; handkerchiefs; soiled children's clothing; excrement on the floor; clear and discarded packing tape; pepper plants in the yard; and a molded pepper that was partially eaten.
PROCEDURAL HISTORY
On September 4, 2014, an 18-count information was filed in the Superior Court of Kern County against Alavez, Pimentel, and Yoval. Each defendant was charged with committing the same five felony offenses against B. and one felony against N.
As to Alavez, the offenses were numbered as follows:
Count I: Attempted murder of B., between June 10 and 12, 2014 (§§ 664/187, subd. (a));
Count II: Torture of B., between March 1 and June 12, 2012 (§ 206);
Count III: Aggravated mayhem of B., between March 1 and June 12, 2014, (§ 205);
Counts IV: Felony child abuse of B., between March 1, and June 12, 2014 (§ 273a, subd. (a));
Count V: False imprisonment of B. between March 1 and June 12, 2014 (§ 236); and
Count VI: Felony child abuse of N., between March 1, and June 12, 2014 (§ 273a, subd. (a)).
Section 206, torture, states: "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."
Section 205, aggravated mayhem, states: "A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole."
Section 273a, subdivision (a), felony child abuse, states: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years."
The information alleged these same six offenses in sequential order against Pimentel (counts VII through XII) and Yoval (counts XIII through XVIII).
As to counts I through IV, it was alleged that Alavez personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)); and personally inflicted great bodily injury on B., a child under the age of five years (§ 12022.7, subd. (d)). As to count V, false imprisonment, only a personal use enhancement was alleged.
Severance and jury trial
On July 9, 2015, the court granted Alavez's motion to sever her trial from the trials of Pimentel and Yoval. The court further held that Alavez's trial would be held first, and then Pimentel and Yoval would be tried together. Thereafter, Alavez's trial began with motions and jury selection.
The verdicts
On August 3, 2015, Alavez was convicted of count II, torture of B., and count IV, felony child abuse of B., and the jury found true the enhancements for personal use of a dangerous or deadly weapon, and personal infliction of great bodily injury on a child under the age of five years.
Alavez was also convicted of count V, false imprisonment of B., with the deadly weapon enhancement found true.
Alavez was found not guilty of count III, aggravated mayhem of B., but guilty of the lesser included offense of felony simple mayhem (§ 203), with the deadly weapon and great bodily injury enhancements true.
Section 203, felony simple mayhem, states: "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."
Alavez was found not guilty of count VI, felony child abuse of N., but guilty of the lesser included offense of misdemeanor child abuse (§ 273a, subd. (b)).
Section 273a, subdivision (b), misdemeanor child abuse, states: "Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor."
The jury was unable to reach a verdict on count I, attempted murder of B., and the court declared a mistrial and later dismissed the charge.
After the court excused the jury, it stated that the jury was split 10 to 2 in favor of acquittal for count I, attempted murder, but it found Alavez not guilty of the lesser included offense of attempted voluntary manslaughter. The court stated the jury could not make a finding on a lesser offense without finding the defendant not guilty of the charged offense. The prosecutor subsequently moved to dismiss count I, on condition that the verdicts on the other counts remain in effect. The court granted the motion.
Sentencing
On September 22, 2015, the court found one mitigating circumstance, that Alavez did not have a prior record; and multiple aggravating circumstances, that the crimes involved acts disclosing a high degree of cruelty, viciousness, or callousness that went well beyond the elements of the offenses; Alavez abused her position of trust as the victims' mother; the victims were particularly vulnerable because of their ages; and all of B.'s injuries were the result of blunt force trauma.
The court imposed the following sentence on Alavez: As to count II, torture of B., life in prison with the possibility of parole, plus consecutive determinate terms of one year for the deadly weapon enhancement and six years for the great bodily injury enhancement.
As to the lesser offense of count III, felony mayhem of B., the upper term of eight years, plus one year for the deadly weapon enhancement and six years for the great bodily injury enhancement, stayed pursuant to section 654;
As to count IV, felony child abuse of B., the upper term of six years, plus one year for the deadly weapon enhancement and six years for the great bodily injury enhancement, stayed pursuant to section 654;
As to count V, false imprisonment of B., the upper term of three years, plus one year for the deadly weapon enhancement, stayed pursuant to section 654; and,
As to the lesser offense for count VI, misdemeanor child abuse of N., 180 days concurrent to count II.
The record in this case states that after Alavez was convicted by the jury, Pimentel entered into a negotiated disposition and pleaded no contest to amended count IX, felony simple mayhem of B. (§ 203), with an enhancement for personal infliction of great bodily injury on a child under the age of five years (§ 12022.7, subd. (d)); count X, felony child abuse of B., with the same great bodily injury enhancement; count XII, felony child abuse of N.; and amended count XIX, felony child abuse of B.; for a stipulated term of 20 years. The remaining counts were dismissed in light of the plea agreement. Pimentel has filed a separate appeal from his convictions and sentence.
Also after Alavez's convictions, Yoval entered into a negotiated disposition and pleaded no contest to count XVI, felony child abuse of B. (§ 273a, subd. (a)), and amended count XVIII, misdemeanor child abuse of N. (§ 273a, subd. (b)), for a stipulated term of four years in prison. Yoval has not filed an appeal.
On September 28, 2015, defendant filed a timely notice of appeal.
DISCUSSION
I. Torture Conviction and the Great Bodily Injury Enhancement
As explained above, defendant was sentenced to life in prison with the possibility of parole for count II, torture of B. in violation of section 206, plus consecutive determinate terms of one year for the personal use of a deadly or dangerous weapon (§12022, subd. (b)(1)), and six years for the personal infliction of great bodily injury on a child under the age of five years (§ 12022.7, subd. (d)). The court stayed the terms imposed for the other felony convictions and accompanying enhancements pursuant to section 654.
Alavez contends that the six-year determinate term imposed for the section 12022.7, subdivision (d) great bodily injury enhancement, attached to her conviction for torture, must be stricken. She argues that section 12022.7, subdivision (g) states the great bodily injury enhancement cannot be imposed when great bodily injury is an element of the substantive offense, and great bodily injury is an element of count II, torture, as defined by section 206. Alavez acknowledges that she did not object to the court's imposition of the great bodily injury enhancement at the sentencing hearing, but asserts that it constituted an unauthorized sentence that may be corrected at any time. (See, e.g., People v. Scott (1994) 9 Cal.4th 331, 353.)
The People agree that Alavez has not forfeited this argument since she claims that the court's imposition of the enhancement resulted in an unauthorized sentence. However, the People argue that the enhancement may only be stricken if the "personal infliction of great bodily injury" is an element of the substantive offense, the personal infliction of great bodily injury is not element of torture, and the court properly sentenced defendant for both the substantive offense and the enhancement.
Our review of the statutory definitions leads to the conclusion that Alavez is correct and the great bodily injury enhancement must be stricken.
A. Section 206
We begin with section 206, which defines the offense of torture. It states:
"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. [¶] The crime of torture does not require any proof that the victim suffered pain." (Italics added.)
Torture has two elements: "(1) the infliction of great bodily injury on another; and (2) the specific intent to cause cruel or extreme pain and suffering for revenge, extortion or persuasion or any sadistic purpose." (People v. Lewis (2004) 120 Cal.App.4th 882, 888, fn. omitted (Lewis); People v. Burton (2006) 143 Cal.App.4th 447, 451-452; People v. Odom (2016) 244 Cal.App.4th 237, 246-247.)
The infliction of "cruel and extreme pain and suffering to discipline children" constitutes conduct encompassed within the torture statute. (See, e.g., People v. Flores (2016) 2 Cal.App.5th 855, 872; People v. Jennings (2010) 50 Cal.4th 616, 685 [deliberate act of starving a child when employed a behavior modification technique qualifies as torture].)
Section 206 expressly relies on the definition of "great bodily injury" as stated in section 12022.7, as an element of torture. As we will explain, section 12022.7, subdivisions (a) through (e) provide for enhancements for the perpetrator's "personal infliction of great bodily injury" on certain victims, but those subdivisions do not define the phrase. Instead, the phrase is defined in section 12022.7, subdivision (f), the entirety of which states:
"As used in this section, 'great bodily injury' means a significant or substantial physical injury."
Section 12022.7, subdivision (f) defines "great bodily injury" without using the phrase "personal infliction." However, subdivision (f) states that the definition applies to the enhancements defined in that section, and those enhancements require the "personal infliction" of great bodily injury.
A conviction for torture in violation of section 206 " 'does not require permanent, disabling, or disfiguring injuries; "[it] only requires 'great bodily injury as defined in Section 12022.7'.... 'Abrasions, lacerations and bruising can constitute great bodily injury.' [Citations.]' [Citation.] Moreover ... 'no single act in the perpetrator's course of conduct may result in great bodily injury. But where the cumulative result of the course of conduct is great bodily injury, and the requisite intent can be found, then the crime of torture has been committed ....' [Citation.]" (People v. Odom, supra, 244 Cal.App.4th at p. 247.)
B. Section 12022.7
Section 12022.7 defines several enhancements for the personal infliction of great bodily injury in the commission or attempted commission of felony. Subdivision (a) states: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." (§ 12022.7, subd. (a).)
Other subdivisions of section 12022.7 separately provide for longer enhancements for the personal infliction of great bodily injury on a person other than an accomplice, in the commission of a felony or attempted felony, under certain circumstances: when the victim becomes comatose due to brain injury or suffers permanent paralysis (subd. (b)); when the victim is a person who is 70 years of age or older (subd. (c)); when the victim is a child under the age of five years (subd. (d)); or when the substantive offense is committed under circumstances involving domestic violence (subd. (e).) (See, e.g., People v. Cook (2015) 60 Cal.4th 922, 925 (Cook).)
In this case, the jury found true the allegation attached to count II, torture, that Alavez personally inflicted great bodily injury upon two-year-old, B., pursuant to section 12022.7, subdivision (d): "Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years." The court relied on the jury's finding to impose the upper enhancement of six years consecutive to Alavez's life term for torture.
C. Section 12022.7 , subdivision (g)
Section 12022.7 imposes "mandatory sentence enhancements for crimes which resulted in the infliction of great bodily injury." (People v. Beltran (2000) 82 Cal.App.4th 693, 696 (Beltran).) "A plain reading of ... section 12022.7 indicates the Legislature intended it to be applied broadly." (People v. Sainz (1999) 74 Cal.App.4th 565, 574.) Nevertheless, "[t]he statute itself clearly states the only exceptions of its application." (Ibid.)
Section 12022.7, subdivision (g) states two exceptions, the second of which is pertinent to the subject of this appeal.
"This section shall not apply to murder or manslaughter or a violation of Section 451 [arson] or 452 [unlawfully causing a fire]. Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense." (§ 12022.7, subd. (g), italics added.)
1. "Murder or manslaughter"
The first exception in subdivision (g) states that an enhancement "shall not apply to murder or manslaughter or a violation of Section 451 [arson] or 452 [unlawfully causing a fire]." (§ 12022.7, subd. (g).) A series of cases attempted to distinguish subdivision (g)'s first sentence to support the conclusion that a section 12022.7 enhancement could be imposed for certain murder and manslaughter convictions, despite the statute's express language. (See, e.g., Cook, supra, 60 Cal.4th at pp. 926-935.)
In Cook, the California Supreme Court held these cases were wrongly decided because "they began to find exceptions to section 12022.7, subdivision (g)'s command that great bodily injury enhancements 'shall not apply to murder or manslaughter.' Subdivision (g) means what it says - great bodily injury enhancements simply do not apply to murder or manslaughter." (Cook, supra, 60 Cal.4th at p. 935.) Cook held it was reasonable to rely "exclusively on subdivision (g)'s language without additional substantive reasoning ... given the simplicity and clarity of that language." (Ibid.) Cook concluded that a "clear reading" of the first sentence of subdivision (g) led to "the unqualified statement" that "the section, meaning all of section 12022.7, does not apply to murder or manslaughter." (Ibid.)
2. Subdivisions (a) through (d)
The instant case involves the exception stated in the second sentence of subdivision (g):
"Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense." (§ 12022.7, subd. (g), italics added.)
This second exception applies to the enhancements defined in subdivisions (a) through (d) of section 12022.7. It omits the enhancement in subdivision (e) for "the personal infliction of great bodily injury under circumstances involving domestic violence."
Section 12022.7, subdivision (h) states another exception: "The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense," and it similarly excludes subdivision (e), for the personal infliction of great bodily injury under circumstances involving domestic violence.
The second sentence of subdivision (g) was addressed in People v. Pitts (1990) 223 Cal.App.3d 1547 (Pitts), where the defendant repeatedly slashed the victim with a box cutter and nearly severed her breast. The defendant was convicted and sentenced for mayhem (§ 203) and an enhancement for the personal infliction of great bodily injury (§ 12022.7, subd. (a)). On appeal, the defendant argued the trial court improperly imposed the enhancement. Pitts agreed and held that "great bodily injury is an element of mayhem. Therefore, an enhancement for great bodily injury cannot be imposed in this case" since the defendant had been convicted of an offense for which great bodily injury was an element, even though great bodily injury was not expressly defined as an element of mayhem. (Pitts, supra, at pp. 1558-1559, italics added.)
As previously noted, section 203 states: "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."
"By its terms,... section 12022.7 precludes a great bodily injury enhancement where 'infliction of great bodily injury is an element of the offense.' As used in ... section 12022.7 great bodily injury means 'a significant or substantial physical injury.' [¶] Defendant was convicted of mayhem. Mayhem is defined in ... section 203 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.' [¶] It is beyond cavil that defendant committed mayhem on the victim in this case and inflicted great bodily injury.... [¶] [O]ur research discloses that from the early common law to modern California law, mayhem has been considered a cruel and savage crime.... Accordingly, we
find great bodily injury as defined in ... section 12022.7 is an element of mayhem and the enhancement for great bodily injury is inapplicable." (Id. at pp. 1559-1560, fn. omitted; see also People v. Hill (1994) 23 Cal.App.4th 1566, 1575 ["Great bodily injury is unquestionably an element of mayhem; it is therefore improper to use that factor to aggravate that sentence for that offense"].
In People v. Santana (2013) 56 Cal.4th 999, the court held that CALCRIM No. 801, the pattern instruction for a violation of section 203, mayhem, improperly required additional proof of " 'serious bodily injury' " in addition to the injuries delineated in section 203. (Santana, supra, at p. 1001.) Santana noted the pattern instruction had been modified based on Pitts, but held that "we cannot conclude that the offense of mayhem includes a serious bodily injury requirement simply based on cases holding that mayhem includes a great bodily injury component." (Santana, supra, at p. 1009.) "By delineating the type of injuries that will suffice for mayhem, the Legislature itself established an injury's requisite level of seriousness in section 203, and when needed, subsequent cases have given further amplification. [Citations.] To add a serious bodily injury requirement to the specific injuries listed in section 203 is more confusing than elucidating." (Id. at p. 1010.)
In People v. Hawkins (1993) 15 Cal.App.4th 1373, the defendant was convicted of battery which resulted in serious bodily injury under section 243, subdivision (d), with a great bodily injury enhancement under section 12022.7. (Hawkins at p. 1374.) Hawkins held that the terms " 'serious bodily injury' " in section 243 and " 'great bodily injury' " in section 12022.7 had substantially the same meaning. Hawkins concluded the enhancement was erroneously imposed because great bodily injury was an element of section 243, subdivision (d). (Hawkins, at p. 1375.)
In Beltran, supra, 82 Cal.App.4th 693, the defendant was convicted of felony evasion of a pursuing peace officer which proximately caused death or serious bodily injury (Veh. Code, § 2800.3), with a section 12022.7, subdivision (d) enhancement for the personal infliction of great bodily injury on a person who is 70 years of age or older. (Beltran, supra, at p. 695.) The defendant argued the great bodily injury enhancement had to be stricken based on the exception stated in section 12022.7 for "crimes where the infliction of great bodily injury was an element of the offense." (Beltran, supra, at p. 697.) Beltran agreed, and held that the infliction of great bodily injury was an element of the felony offense of evading a pursuing peace officer, because "[i]n order to qualify as a felony, the defendant's evasive conduct must have caused 'death or serious bodily injury....' [Citation.]" (Ibid.)
The California Supreme Court has not expressly addressed the second sentence of subdivision (g) except to cite Beltran with approval for its holding that "no such [great bodily injury] enhancement can attach to a crime for which infliction of great bodily injury is an element." (Cook, supra, 60 Cal.4th at p. 934.)
D. Analysis
Alavez argues that great bodily injury is an element of count II, torture, based on the statutory definition of section 206; the court imposed a consecutive six-year term for the personal infliction of great bodily injury on B., a child under the age of five years, pursuant to section 12022.7, subdivision (d); but the second sentence of subdivision (g) expressly prohibits imposition of the subdivision (d) enhancement since great bodily injury is an element of the substantive offense of torture, and the six-year term must be stricken.
"We must interpret the statute according to its terms because ' "the words the Legislature chose are the best indicators of its intent." ' [Citation.]" (Hale v. Superior Court (2014) 225 Cal.App.4th 268, 275.) Section 206 expressly defines an element of torture as the infliction of "great bodily injury as defined in Section 12022.7 upon the person of another" with the requisite criminal intent. Based on the analysis in Cook and Pitts, we are compelled to conclude that "[s]ubdivision (g) means what it says," and an enhancement for the personal infliction of great bodily injury on a victim under the age of five years, as defined in subdivision (d), is barred by the second sentence of subdivision (g) because great bodily injury is an element of the substantive offense of torture as defined in section 206. (Cook, supra, 60 Cal.4th at p. 935.) If the Legislature had a different intent, "it would not have used the simple, unqualified language it employed." (Ibid.)
The People argue Alavez was properly sentenced in this case. In making this argument, the People assert that the exclusion defined in the second sentence of section 12022.7, subdivision (g) only applies if an element of the substantive offense is the "personal infliction" of great bodily injury, since the enhancement requires personal infliction. The People contend that "personal infliction" of great bodily injury is not an element of torture as defined in section 206, so that section 12022.7, subdivision (g)'s exclusion was inapplicable in this case.
In making this argument, the People rely on People v. Harbert (2009) 170 Cal.App.4th 42 (Harbert), where the defendant was convicted of violating Vehicle Code section 20001, subdivision (a), failure to stop at the scene of an accident resulting in injury or death, with an enhancement under section 12022.7 for personal infliction of great bodily injury, after a vehicle accident where the victim died. On appeal, the defendant argued the enhancement should not have been imposed based on the second sentence of section 12022.7, subdivision (g), because great bodily injury was an element of Vehicle Code section 20001, subdivision (a). (Harbert, supra, at pp. 58-59.)
Harbert rejected the defendant's argument. It held that Vehicle Code section 20001 governed numerous situations, one of which was automobile accidents resulting in death. The gravamen of the offense was not the victim's initial injury but leaving the scene without presenting identification or rendering aid, and a person could violate the statute even when not driving. (Harbert, supra, 170 Cal.App.4th at p. 59.) However, Harbert went further than other cases addressing the exclusion in the second sentence of subdivision (g):
"But ... section 12022.7 operates only as to those who personally inflict great bodily injury. There is no comparable requirement in [Vehicle Code] section 20001. The prohibition in ... section 12022.7, subdivision (g) does not govern because the personal infliction of great bodily injury is not an
element of [Vehicle Code] section 20001 . The respective spheres of the two statutes['] operation may overlap, yet they are far from coextensive. When they do overlap, as occurred here, ... section 654 becomes operative. Conviction for both is proper, and imposition of separate sentences for each is proper. But actual punishment, i.e., service of those separate sentences, is not. The appropriate course, the one used by the trial court here, is to stay execution of the sentences. [Citation.]" (Harbert, supra, at p. 59, first italics in original, second italics added.)
The People thus argue that Harbert held the exclusion stated in the second sentence of section 12022.7, subdivision (g) only applies when the "personal infliction" of great bodily injury is an element of the substantive offense.
Harbert's conclusion, and the People's arguments, are refuted by the entirety of the statutory language at issue in this case. Section 206, torture, requires evidence that the perpetrator "inflict[ed] great bodily injury as defined in section 12022.7 upon the person of another ...." (§ 206, italics added.) As explained above, section 12022.7, subdivisions (a) through (e), define enhancements for the "personal infliction" of great bodily injury under certain circumstances. However, the definition cited in section 206 for torture is stated in section 12022.7, subdivision (f), which does not define another "personal infliction" enhancement but which simply states the definition of " 'great bodily injury' " as meaning "a significant or substantial physical injury." (§ 12022.7, subd. (f).) Subdivision (f) defines the type of physical injury meant by that phrase without any reference to the "personal infliction" of that injury.
Thus, while the "personal infliction" of great bodily injury is an element of each enhancement defined in subdivisions (a) through (e), it is not encompassed within the statutory definition of the phrase, as it is incorporated in section 206's definition of torture. Harbert did not address Pitts, Hawkins, or Beltran, and did not explain why it was grafting the enhancement's requirement for "personal infliction" to the definition of "great bodily injury."
In Lewis, supra, 120 Cal.App.4th 882, the court addressed a somewhat related issue. The defendant argued that he could not be convicted of torture without evidence that he "personally inflicted" great bodily injury, because section 206 relied on the definition contained in section 12022.7:
"Section 12022.7, subdivision (f), defines 'great bodily injury' as a significant or substantial physical injury.... The 'personal infliction' requirement is not part of the definition of 'great bodily injury' but is located in the other subdivisions, (a) through (e), which describe under what circumstances a defendant will be subject to an additional and consecutive term of imprisonment. Section 206's reference to section 12022.7 is not ambiguous. It does not give defendant an opening to argue that section 206 requires defendant to have personally inflicted the torture in the same way that section 12022.7 requires there be personal infliction of injury for the statute to operate. Defendant has not identified any affirmative legislative intent to exempt an aider and abettor in torture from liability for prosecution. Nor does there seem to be any reason why one who facilitates torture ... should be less culpable than the actual torturers." (Lewis, supra, at pp. 888-889, fns. omitted.)
The People rely on Lewis in support of the argument that the "personal infliction" of great bodily injury is not an element of torture. This argument fails to account for the entirety of Lewis's holding, that "[t]he 'personal infliction' requirement is not part of the definition of 'great bodily injury' but is located in the other subdivisions, (a) through (e), which describe under what circumstances a defendant will be subject to an additional and consecutive term of imprisonment." (Lewis, supra, 120 Cal.App.4th at p. 888, italics added.)
The second sentence of section 12022.7, subdivision (g) precludes the imposition of an enhancement under subdivision (d) if "great bodily injury," as defined in subdivision (f), is an element of the substantive offense. The exclusion contained in the second sentence of subdivision (g) does not include the "personal infliction" element required for the enhancements themselves, as set forth in subdivisions (a) through (d).
The court in this case improperly imposed the six-year term for the section 12022.7, subdivision (d) enhancement since "great bodily injury" is an element of the substantive offense of torture in violation of section 206, and torture does not include a "personal infliction" requirement.
II. Alavez's Sentence for Mayhem
In count III, Alavez was charged with aggravated mayhem of B. The jury found her not guilty of that offense, but guilty of the lesser offense of felony simple mayhem in violation of section 203, along with the same enhancement under section 12022.7, subdivision (d) for the personal infliction of great bodily injury on a child under the age of five years.
As explained above, Pitts held that "great bodily injury as defined in ... section 12022.7 is an element of mayhem and the enhancement for great bodily injury is inapplicable." (Pitts, supra, 223 Cal.App.3d at pp. 1559-1560; People v. Hill, supra, 23 Cal.App.4th at p. 1575.)
The People state that if this court rejects its interpretation of the second sentence of subdivision (g), and concludes that the great bodily injury enhancement could not be imposed for torture, then Pitts requires that the enhancement imposed for count III, felony simple mayhem, must also be stricken.
III. Correction of Abstract of Judgment
In addition to striking the section 12022.7, subdivision (d) enhancements for counts II and III, the parties agree that the abstract of judgment erroneously states that another great bodily injury enhancement was imposed for count V, false imprisonment. The only enhancement alleged as to count V was for the personal use of a deadly or dangerous weapon, and the jury found that enhancement true.
At the sentencing hearing, the court initially imposed a sentence for both the deadly weapon and great bodily injury enhancements. As the hearing continued, the court realized its error and clarified that only the deadly weapon enhancement had been found true for count V. However, the abstract of judgment contained the court's initial and erroneous ruling.
The abstract of judgment must be amended to strike the term imposed for the section 12022.7, subdivision (d) enhancement attached to count V.
DISPOSITION
The enhancements imposed for both count II, torture, and count III, mayhem, for the personal infliction of great bodily injury on a child under the age of five years, pursuant to section 12022.7, subdivision (d), are stricken based on the plain language of section 12022.7, subdivision (g).
In addition, the abstract of judgment shall be amended to strike the section 12022.7, subdivision (d) enhancement imposed as to count V, false imprisonment. The trial court shall prepare and forward to all appropriate parties a certified copy of the amended abstract of judgment.
In all other respects, the judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
SMITH, J. /s/_________
BLACK, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------