Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. TA081060 c/w TA081840 of Los Angeles County, Gary R. Hahn, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
PROCEDURAL BACKGROUND
By information filed October 26, 2005, appellant was charged with four felonies and one misdemeanor relating to crimes allegedly committed September 9, 2005. In early 2006, the trial court granted the prosecution’s motion to consolidate the case with another, and denied appellant’s motion to try the two cases separately. An amended information was filed August 28, 2006, adding two felonies allegedly committed in July 2005, and four additional felonies allegedly committed on September 4, 2005. In addition to various enhancements, the new information alleged a prior felony conviction as a second “strike” under the California Three Strikes Law. The trial court granted appellant’s section 995 motion to dismiss count 2, and later dismissed counts 6 and 7 (the July offenses), pursuant to section 1385.
See Penal Code sections 667, subdivisions (b) through (i), 1170, subdivisions (a) through (d). All further statutory references are to the Penal Code unless otherwise indicated.
In October 2006, jury trial proceeded on the remaining eight consolidated counts. Appellant was convicted of carjacking (count 1), car theft (count 3), felony evasion in violation of Vehicle Code section 2800.2 (count 4), misdemeanor resisting arrest (count 5), first degree robbery (count 8), second degree robbery (count 9), assault with a deadly weapon (count 10), and aggravated mayhem (count 11). With regard to counts 8, 9, 10 and 11, the jury found true the allegation that appellant had used a deadly weapon -- a knife -- in the commission of each crime, within the meaning of section 12022, subdivision (b). As to counts 8 and 10, the jury also found true the allegation that appellant had inflicted great bodily injury on the victim, within the meaning of section 12022.7, subdivision (a). Appellant admitted that he had suffered a prior unarmed robbery conviction in the State of Michigan on December 8, 2004.
On December 8, 2006, the trial court sentenced appellant to a total term of 43 years, 4 months to life in prison. Appellant thereafter timely filed a notice of appeal.
FACTS
1. September 4, 2005 Incident
On September 4, 2005, at approximately 5:00 a.m., James McFadden and his wife, Rona Wilson, arrived at a parking lot of the Nickerson Gardens housing complex in a taxi driven by Feliciano Anaya Rodriguez. While McFadden waited in the cab, Wilson went in search of a homeless woman known by the local residents as “Green Eyes.”
Wilson testified that as she approached another parking area of the complex, she observed appellant walking toward her. She stopped and asked appellant whether he had seen “Green Eyes.” Wilson was unarmed and did nothing aggressive. After appellant walked past her, he turned around and punched her in the face. Holding a knife, appellant held her, patted her down, and took $20 from her bra. He then asked Wilson if she had been in the taxi. When she said yes, appellant said, “Bitch, don’t move. Stay right there. Don’t move.”
When appellant was out of her sight, Wilson went in the opposite direction and approached the first parking lot from behind a building. She hid behind some large trash cans when she saw appellant leaning into the passenger side of the taxi. She then observed the driver outside the cab, and saw appellant trip him. Appellant appeared to reach down and pull at the driver, who was out of Wilson’s sight. Wilson identified appellant in court as the man who had attacked her and the cab driver. She testified that she had no doubt about her identification.
The cab driver, Anaya, testified that after he and McFadden had been waiting for Wilson for about 10 minutes, a man leaned into the taxi through the passenger door and asked for money. The man took $40, came around to the driver’s side, pointed a knife at Anaya and told him to get out. Unarmed, Anaya complied; the man then grabbed his wrists and tripped him. Anaya testified that he fell to the ground, where he remained without struggling in a spread-eagle position, while the man searched his pockets. Once done, the man stabbed Anaya in his thigh, approximately four inches above the knee, severing an artery. The artery was surgically repaired, but thereafter Anaya walked with a limp, and experienced pain in his leg after 10 minutes of walking.
McFadden observed the events from the back seat of the taxi, and identified appellant in court as Anaya’s attacker. His account was essentially the same as Anaya’s, although he thought he saw what he described as a “little tussle,” as Anaya struggled to rise from the ground while appellant held him down, before appellant stabbed him.
2. September 9, 2005 Incident
At approximately 1:00 a.m. on September 9, 2005, Stanley Huey drove a woman to her apartment at Nickerson Gardens, located at the corner of Central Avenue and Imperial Highway. Huey accompanied the woman because she had promised to have sex with him, but said she needed to stop for drugs first. As soon as Huey followed the woman inside the apartment, appellant slammed the door shut, and blocked Huey’s exit. Appellant then hit or punched Huey, who lost consciousness. Huey came to while appellant was searching his pockets, apparently taking Huey’s car keys. When appellant and the woman left the apartment, Huey discovered that his money, watch and car were missing. He walked out to Imperial Highway, flagged down the police and told them his car had been stolen. Huey was bleeding from the lip, his jaw was swelling and he was developing a bump on his head. Huey described his car and assailant for the police, who then drove him to the home of relatives.
Most of the facts regarding the attack on Huey came from the testimony of the investigating officer, Detective John Simmons, who interviewed Huey. In the hallway at the preliminary hearing, Huey told the prosecutor and Detective Simmons he was afraid appellant or other gang members would kill him if he identified him. At trial, Huey denied having identified appellant or having told Detective Simmons the details of the attack. He denied appellant was ever in the apartment when he went there with the woman and testified that he must have lost consciousness due to his diabetes.
Soon afterward, Los Angeles Police Officer David Chong and his partner heard a broadcast of the description of the car and the suspect, and drove toward Nickerson Gardens, the location where both had last been seen. When they saw a vehicle and occupant matching the description, they gave chase, with sirens and flashing lights, but the car sped away. The officers engaged in a high-speed chase during which the suspect sped through stop signs and red lights, before other officers trapped him in the Nickerson Gardens parking lot where they arrested him. Officer Chong identified appellant in court as the suspect. Approximately 20 to 30 minutes after he had been dropped off at the home of relatives, Huey was transported back to the scene of arrest, where he identified appellant as the person who had taken his property.
DISCUSSION
1. Appellant’s Contentions
Appellant makes two assignments of error. He contends there was insufficient evidence to prove that when he stabbed Anaya, he harbored the specific intent required to commit aggravated mayhem. Appellant also contends that he could not be convicted of carjacking, because Huey’s car was taken from the parking lot while Huey was in the apartment.
2. Aggravated Mayhem
With regard to the attack on Anaya, appellant contends that his conviction of aggravated mayhem was not supported by substantial evidence, because there was insufficient evidence to prove that when he stabbed Anaya, he harbored a specific intent to maim him or cause him permanent disability or disfigurement.
Aggravated mayhem is defined in section 205 as follows: “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. . . .”
“Mayhem is a general intent crime. [Citation.] . . . [¶] Aggravated mayhem, on the other hand, requires the specific intent to cause the maiming injury. [Citation.] Evidence that shows no more than an ‘indiscriminate attack’ is insufficient to prove the required specific intent. [Citation.] ‘Furthermore, specific intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately. [Citation.]’ [Citation.]” (People v. Park (2003) 112 Cal.App.4th 61, 64 (Park).)
“‘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. [Citation.] As in any case in which the sufficiency of the evidence is questioned, this court must review the record in the light most favorable to the judgment, and presume in support of that judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] When the evidence is sufficient to justify a reasonable inference that the requisite intent existed, the jury’s finding of that intent will not be disturbed on appeal. [Citation.]” (People v. Ferrell (1990) 218 Cal.App.3d 828, 834 (Ferrell); see also Park, supra, 112 Cal.App.4th at p. 68.)
An intent to inflict permanent disability or disfigurement may be inferred from circumstances showing the “attack was the product of deliberation and planning, not an explosion of indiscriminate violence.” (Park, supra, 112 Cal.App.4th at p. 70.) “Thus evidence of a ‘controlled and directed’ attack or an attack of ‘focused or limited scope’ may provide substantial evidence of [the requisite] specific intent. [Citation.]” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162 (Quintero).)
Here, appellant’s violence was neither explosive nor indiscriminate. Appellant arrived on the scene armed, and robbed his first victim, Wilson. After determining that she had come from the taxi, he told her to remain where she was, suggesting that he had already formed the intent to commit a second robbery when he approached the taxi. He robbed the driver at knife point, and after Anaya was on the ground, appellant stabbed him in the thigh. The prosecutor argued that the facts showed an intent to disable Anaya in order to prevent him from running away or from chasing appellant. We agree. After satisfying himself Anaya had no more money, appellant delivered -- “a ‘controlled and directed’ attack or an attack of ‘focused or limited scope,’” from which a jury could reasonably infer that appellant intended to disable Anaya in order to keep him from getting up, and that appellant deliberately chose a limb for that purpose.
The evidence was conflicting as to whether Anaya struggled or remained still on the ground while appellant robbed him. In either event, the jury could reasonably have inferred that appellant’s knife-blow to the thigh was intended to disable him from getting up and pursuing appellant or seeking help.
Appellant contends the prosecutor misstated the law by arguing, “There’s no reason to stab him in the [thigh] unless you’re trying to cause this injury.” Appellant argues that the intent to cause the injury is the equivalent of an intent merely to do the act, which is general, not specific intent. We disagree. The two concepts are not identical. The general intent for mayhem is the intent to do the act, whereas the specific intent required for aggravated mayhem is the intent to cause the maiming or disabling injury. (Park, supra, 112 Cal.App.4th at p. 64.) Thus, the prosecutor described the required intent correctly.
In an effort to distinguish cases in which the evidence was found sufficient to support a finding of specific intent to maim, appellant focuses on selected facts. In Quintero, the court held that an intent to maim could reasonably be inferred from evidence that the defendant attacked a particularly vulnerable portion of the victim’s body -- his head -- with forceful blows, stopping his attack only once he had maimed the victim’s face. (Quintero, supra, 135 Cal.App.4th at p. 1163.) In Park, when the defendant became angry over a remark in a restaurant, he attacked his victim with a steel knife sharpener by aiming his blows to the head -- a vulnerable part of the body -- stopping only when he had knocked out several teeth. (Park, supra, 112 Cal.App.4th at pp. 65, 69.) In Ferrell, the defendant’s acts were shown to have been “directed and controlled” because she asked for the victim by name, shot the victim’s father in the knee as he moved to intervene, and then shot the victim in the neck at close range. (Ferrell, supra, 218 Cal.App.3d at pp. 831-832, 835.)
Appellant suggests that a rule emerges from the factors considered by the courts in Quintero, Park and Ferrell, requiring the prosecution to prove that the attack was aimed at the head or neck, that it ceased once the defendant was satisfied he or she had caused the injury, and that the victim had provoked the defendant or the defendant delivered repeated blows suggesting “an emotionally charged . . . vendetta.” Appellant then argues that the thigh is not a particularly vulnerable body part, like the head or neck, and that no evidence suggested the attack was emotionally charged or motivated by revenge, or showed that appellant looked back either to satisfy himself that Anaya was disabled, or to admire his work.
We reject any suggestion that an intent to maim or permanently disable may not be reasonably inferred absent evidence of the identical factors considered in Quintero, Park and Ferrell. Certainly, an attack focused upon the head or neck may suggest an intent to cause a particular injury because those areas are so vulnerable, but if an assailant intended to keep his prone victim from pursuing him or summoning help, the thigh would be a logical area to focus the attack. It was the jury’s task to choose between competing reasonable inferences, and as the jury’s choice is supported by substantial evidence, it is not subject to reversal on appeal. (See Park, supra, 112 Cal.App.4th at pp. 71-72.)
Further, there is no requirement that aggravated mayhem result from an emotionally charged attack. Indeed, an emotionally charged attack may imply the absence of deliberation and planning, and suggest “an explosion of indiscriminate violence.” (Park, supra, 112 Cal.App.4th at p. 70; see also People v. Lee (1990) 220 Cal.App.3d 320, 325-326 (Lee) [sudden, indiscriminate attack less likely to show intent to maim than controlled, directed one].) In analyzing the analogous intent required for felony murder with mayhem, the California Supreme Court has found a highly emotional indiscriminate attack on the victim militated against an intent to maim. (People v. Sears (1965) 62 Cal.2d 737, 741, 745, overruled on another point in People v. Cahill (1993) 5 Cal.4th 478, 509, fn. 17; see Park, supra, at p. 70, discussing Sears.)
Nor do we discern a requirement that the facts establish a motive of revenge, particularly where the intent is to disable, rather than maim. For example, in Ferrell,there was no evidence of a vendetta or other motive for the attack. (Ferrell, supra, 218 Cal.App.3d at pp. 831-832.)
Appellant contends that his actions are comparable to those of the defendant in Lee, where the court found the evidence insufficient to support a finding that the defendant harbored the specific intent to maim. (See Lee, supra, 220 Cal.App.3d at p. 326.) There, the defendant, who lived in the room next to the victim’s, entered the victim’s room uninvited, said, “‘You know what to do,’” hit the victim three times with his fist on the nose, eye and mouth and kicked him. (Id. at p. 323.) The victim had never had any problem with the defendant and could think of no reason why the defendant would attack him. (Ibid.) In Lee, the attack was “no more than a sudden, indiscriminate, and unfocused battering of [the victim’s] body . . ., not . . . a controlled, directed, limited attack . . . .” (Id. at p. 326.) Here, appellant’s attack was not sudden or without a conceivable reason, as in Lee, but part of a planned robbery during which the victim would otherwise have been able to get up. Nor was the attack unfocused or indiscriminate, but aimed at a body part that if disabled, would prevent Anaya from rising from the ground to pursue appellant or seek assistance.
Further, in Lee, the court placed great importance on the fact that the defendant “did not shoot or stab his victim; instead, he used his fists and his feet.” (Lee, supra, 220 Cal.App.3d at p. 326.) This distinction was noted in Park, where the defendant had armed himself with a knife sharpener. (Park, supra, 112 Cal.App.4th at p. 71.) The Park court distinguished Lee, where the attack had been unprovoked and sudden, noting that “most significantly, Lee involved an attack of fists and feet, not a steel weapon [which] . . . is far more likely to inflict a maiming injury than the former . . .; [thus,] defendant’s deliberate choice of a steel weapon in lieu of ‘fists-de-cuff’ is further evidence he had the specific intent to maim.” (Park, supra, 112 Cal.App.4th at p.71.) Similarly, appellant’s use of a knife indicates a specific intent to disable Anaya. We conclude that substantial evidence supported the jury’s conclusion that appellant harbored a specific intent to cause Anaya a permanent disability.
In his reply brief, appellant contends that a stab wound to the thigh is less likely to cause permanent injury than a stab wound to a part of the body with less fat and other tissue. There was no medical evidence, and no evidence to suggest that appellant chose the thigh in order not to disable Anaya, rather than to do so. Moreover, assuming arguendo that a jury could reasonably draw the inference suggested by appellant, it would not render the evidence insubstantial. (People v. Earp (1999) 20 Cal.4th 826, 887-888.)
3. Carjacking: Immediate Presence Element
“‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” (§ 215, subd. (a).) Appellant contends that taking the victim’s car from the parking lot while the victim remained in the apartment cannot constitute a taking from the victim’s immediate presence.
“[T]he Legislature modeled the carjacking statute on the robbery statute.” (People v. Lopez (2003) 31 Cal.4th 1051, 1059; §§ 211, 215; see also In re Travis W. (2003) 107 Cal.App.4th 368, 374-378.) “When legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the Legislature intended the same construction . . . .” (People v. Lopez, supra, at p. 1060.) The carjacking statute was enacted after the California Supreme Court had construed immediate presence under the robbery statute in People v. Hayes (1990) 52 Cal.3d 577 (Hayes). (See Stats. 1993, ch. 611, § 6, p. 3508.) In Hayes, the court stated: “The generally accepted definition of immediate presence . . . is that ‘“[a] thing is in the [immediate] presence of a person, . . . which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.”’ [Citations.] . . . [I]mmediate presence ‘“must mean at least an area within which the victim could reasonably be expected to exercise some physical control over [her] property.”’ [Citation.] Under this definition, property may be found to be in the victim’s immediate presence ‘even though it is located in another room of the house, or in another building on [the] premises.’ [Citations.]” (Hayes, supra, 52 Cal.3d at pp. 626-627.)
“Immediate presence” has since been construed to have the same meaning in the carjacking statute as in the robbery statute. (People v. Medina (1995) 39 Cal.App.4th 643, 650 (Medina).) Thus, although there must be a confrontation between the defendant and the driver (or passenger) for a carjacking to occur, the victim need not be inside the automobile or touching it at the time the force or fear is applied. (Id. at pp. 650-651.) In Medina, the victim was attacked by men hiding inside a motel room where he had been lured by a woman claiming to be a prostitute; the assailants took his keys and drove off in his car, which had been parked in front of the motel. (Ibid.) The evidence was found sufficient to support the carjacking charge. Here, as in Medina, the evidence suggested the victim was lured away from his car by a woman working with appellant, and into the apartment where the confrontation occurred. (See Medina, supra, 39 Cal.App.4th at pp. 651-652.)
In People v. Hoard (2002) 103 Cal.App.4th 599 (Hoard), the defendant robbed a jewelry store at gunpoint, demanding the car keys of one of the victims, Sarah Gibeson, before tying up others in the back room. (See id. at pp. 601-602.) Once the others were released, Gibeson saw that her car was missing. (Id. at p. 602.) The appellate court held that “the elements of carjacking were established. Defendant took possession of Gibeson’s car by threatening her and demanding her car keys. Although she was not physically present in the parking lot when [the defendant] drove the car away, she had been forced to relinquish her car keys. Otherwise, she could have kept possession and control of the keys and her car. Although not the ‘classic’ carjacking scenario, it was a carjacking all the same.” (Id. at p. 609, fn. omitted.)
Appellant contends that Hoard and Medina were rejected in People v. Coleman (2007) 146 Cal.App.4th 1363 (Coleman), creating a conflict among appellate courts. We disagree. The Coleman court distinguished the facts before it from those in Medina and Hoard, and Coleman’s facts are equally distinguishable from those presented here. In Coleman, the keys to a company car had been turned over during a store robbery by an employee who was not responsible for the car and did not drive it. (Coleman, supra, at p. 1373.) The store employee was not an owner or possessor of the car, as in Hoard, and the owner had not been lured away from the car by trick or device, as in Medina, and as in this case. (Coleman, supra, at pp. 1370-1371; see Hoard, supra, 103 Cal.App.4th at pp. 602, 608; Medina, supra, 39 Cal.App.4th at pp. 651-652, citing People v. Harris (1994) 9 Cal.4th 407, 422-423.)
Contrary to appellant’s contention, the court in Coleman did not construe the carjacking statute as requiring the victim to be in or very close to the vehicle. Indeed, the court expressly “acknowledge[d] that a carjacking may occur where neither the possessor nor the passenger is inside or adjacent to the vehicle. [Citation.]” (Coleman, supra, 146 Cal.App.4th at p. 1373.) Coleman turned instead on the element of possession, not immediate presence. (See id. at pp. 1371-1373.) The carjacking statute, like the robbery statute, requires the property to be taken from the victim’s possession. (§§ 215, 211.) Possession may be constructive. (People v. Nguyen (2000) 24 Cal.4th 756, 761-762; § 211.) However, because the victim had never had responsibility for the car, the Coleman court refused to read a rule of constructive possession into the carjacking statute. (Coleman, supra, at pp. 1371-1372.)
The court did criticize Hoard for having applied Medina to a situation where there had been no confrontation near the car and the owner had not been lured away from the immediate presence of the car by trick or device. The instant case would no doubt satisfy the Coleman court, as it more closely resembles Medina. (See Coleman, supra, 146 Cal.App.4th at pp. 1371-1373; Medina, supra, 39 Cal.App.4th at pp. 646, 651-652.)
Here, possession was not an issue, as the car belonged to the victim. As in Medina, the evidence suggested the victim had been lured into the apartment and away from his car. (Medina, supra, 39 Cal.App.4th at p. 651-652.) Also as in Medina, appellant then accomplished the theft by confronting the car’s possessor, using force to obtain the keys. (Id. at pp. 650-651.) We conclude that substantial evidence supports appellant’s conviction of carjacking.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.