Opinion
F062089 Super. Ct. No. 10CEJ600768-1
01-18-2012
In re K.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.R., Defendant and Appellant.
Roger K. Litman and Lisa M. Sciandra for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge.
Roger K. Litman and Lisa M. Sciandra for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
A juvenile court found true the allegations that appellant K.R. committed torture (count 1; Pen. Code, § 206), battery with serious bodily injury (count 2; § 243, subd. (d)), assault by means likely to produce great bodily injury (count 3; § 245, subd. (a)(1)), and aggravated mayhem (count 4; § 205). (Welf. & Inst. Code, § 602, subd. (a).) After ordering him committed to the Department of Corrections, Division of Juvenile Justice (DJJ), the court imposed a 10-year term as the maximum period of confinement (Welf. & Inst. Code, § 731, subd. (c)), consisting of 10-year concurrent terms on counts 1 and 4, and ordered stays on counts 2 and 3. On appeal, K.R. challenges the sufficiency of the evidence of torture and aggravated mayhem, argues abuse of discretion in the order of commitment to DJJ, and requests a stay of one of his 10-year terms. We affirm.
Later statutory references are to the Penal Code except where otherwise noted.
BACKGROUND
After drinking alcohol at a party with other juveniles, D.S. fell asleep with his shoes on. He did not remember anything afterward. A partygoer testified, "When you go to a party and you fall asleep with your shoes on, that's like asking for you to be hazed, to be messed with[,] ... because if you are too drunk not to take your shoes off, then you are too drunk." Interrupting a partygoer who asked for a marker to draw on D.S.'s face, K.R. said, "Nah, let's burn him." After he left the room briefly, K.R. returned with a bottle with warm liquid inside. He passed the bottle around "to make sure everyone knew it was pee" and then doused D.S. from head to toe with urine from the bottle.
K.R. then held a lit cigarette lighter upside down to heat the metal top, which he touched to D.S.'s arm and cheek. K.R. laughed. After he heated the metal top again, he pulled down D.S.'s pants and underwear and burned his "right butt cheek." After heating the metal top yet again, he burned D.S.'s "other cheek." D.S. moaned.
Turning the lighter upside down again, K.R. let the metal top heat up longer than before. Smiling, he said, "I'm going to burn his butt hole. Watch this." As K.R. "angled it towards where [D.S.]'s butt hole was" and "put it in," D.S.'s anus "appeared to pucker and take the lighter in." D.S. screamed. The lighter started to go in deeper. K.R. pulled it out "real quick." Every time K.R. burned D.S. with the lighter, there were sounds of flesh and hair burning. "[E]very burn had a sizzle."
D.W. said, "Let's give him a tramp stamp." K.R. told him to find something round. D.W. got a beer bottle cap, which K.R. heated with the lighter until the lining caught fire. K.R. pulled D.S.'s urine-soaked shirt up. D.W. dripped flames onto his lower back. K.R. and D.W. laughed hysterically. Their faces turned red. Tears came to their eyes. D.S. started screaming, "swaying back and forth," "crying and whimpering." K.R. "said he wanted one more." He used the lighter to burn D.S on the neck and arms. The sizzle was audible "over and over again."
With reference to the juvenile wardship petition the district attorney filed as to D.W., the court found true the allegations of battery with serious bodily injury, assault by means likely to produce great bodily injury, and aggravated mayhem but found not true the allegation of torture.
--------
The burn center director at Community Regional Medical Center examined "contact burns scattered over several areas of [D.S.'s] body, his face, his neck, his back," the appearance of which suggested causation by the same object. With the patient under anesthesia, the surgeon examined a deep second degree burn in D.S.'s peri-anal area, a burn that he testified could result in permanent scarring and long-term problems with defecation. During his three nights and four days of hospitalization, D.S. received intravenous pain medication for his "excruciating" pain. After his discharge from the hospital, he took oral pain medication daily for three months. "Embarrassed, hurt, betrayed, [and] disgusted," he did not want to go outside or be seen because of the burns to his face. He became depressed, lost 40 pounds, and could not sleep.
DISCUSSION
1. Sufficiency of the Evidence of Torture
K.R. argues that an insufficiency of the evidence of specific intent requires reversal of the torture count. The Attorney General argues the contrary.
Without citation to authority, K.R. posits the non-sequitur that the party rule "of hazing anyone who falls asleep with shoes on negated any possibility that there was an intent to derive pleasure from inflicting pain." Again without citation to authority, he emphasizes that K.R. and D.W. "were not the only ones laughing" and posits the notion that bystander conduct is relevant. He trivializes K.R.'s actions as "an example of why teenagers are not legally permitted to drink alcohol" and argues, "The evidence here shows nothing more than drunken, teenage stupidity, with tragic results."
Our understanding of the law differs from K.R.'s. As section 206 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." (§ 206.) A "great bodily injury" within the meaning of section 206 is "a significant or substantial physical injury." (§ 12022.7, subd. (f).)
Case law amplifies the statutory definition. "As the statute states, torture has two elements: (1) a person inflicted great bodily injury upon the person of another, and (2) the person inflicting the injury did so with specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (People v. Baker (2002) 98 Cal.App.4th 1217, 1223.) K.R.'s challenge is not to the great bodily injury element but solely to the specific intent element.
The specific intent element of torture "is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." (People v. Pre (2004) 117 Cal.App.4th 413, 420.) That is so here. As our Supreme Court notes, "The condition of the victim's body may establish circumstantial evidence of the requisite intent." (People v. Mincey (1992) 2 Cal.4th 408, 433 (Mincey).) Even apart from the two worst burns (the burn to D.S.'s lower back and his second degree perianal burn), K.R. inflicted burns to D.S.'s ear, cheekbone, lip, arm, right buttock, left buttock, and knee. As K.R. kept burning D.S. over a period of about an "hour and a half, two hours," D.S. swayed back and forth, and he yelled and screamed, and he cried and whimpered.
"In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (Mincey, supra, 2 Cal.4th at p. 432.) Bearing in mind the rule of law that the emphasis is not on the injuries but on the perpetrator, here the circumstances of the offense and other circumstantial evidence establish, by the applicable standard of review, a sufficiency of the evidence of the specific intent of torture. (People v. Jung (1999) 71 Cal.App.4th 1036, 1042-1043.)
2. Sufficiency of the Evidence of Aggravated Mayhem
K.R. argues that an insufficiency of the evidence of disfigurement or specific intent requires reversal of the aggravated mayhem count. The Attorney General argues the contrary.
As the statute states, one who, "under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent ... disfigurement of another human being" commits aggravated mayhem. (§ 205.) K.R. argues that the evidence "did not show injuries that were within the meaning of 'disfigurement'" but showed "nothing more than an indiscriminate attack, which was insufficient to support an inference of the requisite specific intent." The record refutes his argument.
With reference to the issue of permanent disfigurement, the record shows D.S. was still disfigured from the burn on his lower back five months after the assault. In court, he showed the scar, which the prosecutor characterized as "obvious," "above the waistline," "slightly raised," and "in the shape of a circle." K.R.'s attorney noted that the scar was "just kind of to the left, maybe a quarter of an inch to the left of his backbone." In reply to the prosecutor's question whether there was "anything different about that scar as far as your discomfort, versus the other scars to your face," D.S. replied, "I won't take my shirt off anywhere."
K.R. argues that "there was no evidence to prove that the scars constituted a permanent disfigurement." Rejecting a like challenge, the court in People v. Keenan (1991) 227 Cal.App.3d 26 wrote, "In the absence of any evidence to the contrary, we assume that the scars [the victim] suffered, which remained three and one-half months after the attack, were permanent." (Id. at p. 36, fn. 6.) Likewise, in the absence of any evidence to the contrary, we assume that the "tramp stamp" scar - "raised" and "obvious" some five months after the assault - on D.S.'s back was permanent. K.R.'s argument that the absence of testimony to that effect from the treating physician left a record with "no evidence" of permanent disfigurement is meritless. He argues that a burn "to a male's lower back," unlike "an injury to female breasts and an injury to the human face," cannot "rise to the level of 'disfigurement' required under the mayhem statute," but nothing in Keenan or in any other case on which he relies so holds.
With reference to the issue of specific intent, K.R. argues that the evidence shows only "an indiscriminate attack," not "the kind of directed, controlled, and focused act that would allow the inference of specific intent." By quickly pulling the lighter out of D.S.'s anus when it "started to sink in," K.R. showed his "concern" for D.S., he contends, "not an intent to cause a maiming injury," adding that "all of the boys were inappropriately laughing at the burnings." (Italics in original.) He attempts to analogize his attack on D.S. to the one in People v. Lee (1990) 220 Cal.App.3d 320, where defendant, not in "a controlled, directed, limited attack," from which "a jury could reasonably have inferred that [he] specifically intended to disable [the victim] permanently," but in "a sudden, indiscriminate, and unfocused battering," "punched his victim in the face three times" and "kicked his victim at least twice somewhere on his body." (Id. at p. 326.)
Here, the evidence shows a "controlled, directed, limited attack." After D.W. came up with the idea of branding D.S. with a "tramp stamp," K.R. told him to find a round object. After D.W. found a beer bottle cap, K.R. heated the cap with a lighter. After D.W. held the cap with needle nose pliers until the lining caught fire, K.R. pulled D.S.'s urine-soaked shirt up a little bit. After D.W. dripped flames onto his lower back, D.S. was screaming, "swaying back and forth," "crying and whimpering." Both K.R. and D.W. laughed hysterically, and their faces turned red, and tears came to their eyes. Lee is inapposite.
"Aggravated mayhem requires the specific intent to cause the maiming injury." (People v. Assad (2010) 189 Cal.App.4th 187, 195.) "Any reasonable person would know," the court observed, rebuffing an analogous challenge to the sufficiency of the evidence of specific intent, that "placing a burning hot knife against [a] person's skin would likely cause permanent disfigurement." (Id. at pp. 195-196.) Any reasonable person would know that dripping the flames of a melting beer bottle cap lining onto a person's skin would likely cause permanent disfigurement.
"The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (Mincey, supra, 2 Cal.4th at p. 432.) By the applicable standard of review, a sufficiency of the evidence of the specific intent of aggravated mayhem is in the record.
3. Disposition Hearing
K.R. argues that the court's failure to consider less restrictive alternatives than a DJJ placement requires a remand for a new disposition hearing. The Attorney General argues the contrary.
On an appellate challenge to a DJJ commitment decision, we apply the abuse of discretion standard of review and indulge all reasonable inferences to support the court's decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) By that standard of review, our duty is to disturb the court's determination if and only if, after viewing all of the evidence most favorably in support of the court's order, no court reasonably could have issued such an order. (In re Levi H. (2011) 197 Cal.App.4th 1279, 1291.) Even so, the record must contain evidence demonstrating not only a probable benefit to the minor by a DJJ commitment but also the inappropriateness or ineffectiveness of less restrictive alternatives. (Angela M., supra, at p. 1396.) Nothing bars a DJJ commitment, however, for a ward who has never received any other placement. (In re Eddie M. (2003) 31 Cal.4th 480, 488.)
In an interview with a detective shortly after the crimes, K.R. minimized his culpability, initially denying burning D.S. at all, then admitting burning him once, then admitting burning him twice, later admitting dropping the lighter while burning him on the buttock, still later admitting burning the outside of his anus briefly, but denying any responsibility for the burn on his lower back. At the disposition hearing, D.S.'s mother testified that K.R. and D.W. "didn't kill my son but [for] the grace of God. But all that remains of my son is his shell." She testified that he "hates the world and everyone in it, including himself," and says, after looking at himself in the mirror, that he sees "someone that doesn't want to be here anymore." She testified that he has gone to "appointment after appointment" with the burn center director, a plastic surgeon, and a counselor and that he has referrals to see yet "another psychologist" and "an anal surgeon due to the none [sic] stop bleeding when he just so much as walks across the room." Some seven months after the crimes, he was "still waking up crying, screaming in fear." The psychologist whom K.R.'s parents retained testified to her opinion that his assault was "fueled" by his rage at his mother "for repeatedly passing out drunk" and by his memories of "finding her passed out in the rain covered in dirt."
Even though K.R. had no prior record and denied any involvement in gang activity, the police report documented his statements claiming that he had "connections with the 'MOB' and 'Hell's Angels'" and that he threatened to have "witnesses 'dealt with'" and to have "a 'hit put out' on witnesses." He admitted using alcohol, marijuana, and mushrooms and experimenting with cocaine and ecstasy. His misbehavior while at juvenile hall included nine incidents of arguing with, directing profanity at, or not getting along with his peers, four incidents of talking during quiet time, and three incidents of disrespecting his peers. The probation officer noted the mother's admission that she was a "crappy mom" who was "emotionally unavailable" to K.R. "due to her drug addiction" and the mother's characterization of K.R.'s father as failing to provide "structure and discipline" due to "his own drug and alcohol addiction." The probation officer noted that the parents thought K.R. needed the "structure and accountability" that a juvenile justice campus commitment, family counseling, individual counseling, and substance abuse counseling could provide. The probation officer considered "all local custodial programs in an attempt to provide rehabilitative services" but noted K.R.'s rejection as an "an inappropriate candidate for any local custodial program" due to the "gravity" of an "act of aggravated mayhem and torture" on an "unconscious and helpless" victim. He opined that K.R. needed "a higher level of supervision" at the DJJ, where he could not only "receive rehabilitative services" but also be "accountable for his delinquent acts." He characterized "protection and safety of the public" as "paramount in this case."
The record shows that the court considered "all of the local, less restrictive programs in form of custody." The court found that a "less restrictive program" than a DJJ commitment was "not appropriate," that "the welfare of the minor requires custody be taken from the minor's parent," and that the "mental, physical condition[s] of the minor are such as to render it probable that the minor will benefit by reformatory, education, discipline and other treatment provided by the [DJJ]."
"One of the primary objectives of juvenile court law is rehabilitation, and the statutory scheme contemplates a progressively more restrictive and punitive series of dispositions starting with home placement under supervision, and progressing to foster home placement, placement in a local treatment facility, and finally placement at the DJJ." (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) Although the DJJ is normally a placement of last resort, there is no absolute rule prohibiting a DJJ commitment without attempting a less restrictive placement. (Ibid.) "A DJJ commitment is not an abuse of discretion where the evidence demonstrates a probable benefit to the minor from the commitment and less restrictive alternatives would be ineffective or inappropriate." (Ibid.) That is so here.
4. Section 654 Stay
K.R. argues that section 654 requires a stay of one of the two concurrent 10-year terms. The Attorney General argues the contrary.
Section 654 bars multiple punishment not only for a single criminal act but also for a single indivisible course of conduct in which the defendant had only one criminal intent or objective. (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603 (Moseley), citing, e.g., People v. Bauer (1969) 1 Cal.3d 368, 376.) Our duty on appeal is to review by the substantial-evidence standard the court's findings of fact, whether implicit or explicit, on the issue of whether there was a single criminal act or a single indivisible course of conduct within the scope of the statute. (Moseley, supra, at p. 1603, citing, e.g., People v. Coleman (1989) 48 Cal.3d 112, 162.)
The crux of K.R.'s argument is that the evidence shows that his acts "were all done with the same intent to haze [D.S.] for falling asleep with his shoes on. There was no evidence to show or imply any other intent." The record refutes his argument. For about an hour and a half to two hours, K.R. burned one part of D.S. 's body after another, despite the "sizzle" of his flesh and hair each time K.R. burned him, despite the moans, the screams, the cries, and the whimpers. Substantial evidence shows that K.R. had not only the specific intent of torture (ante, part 1) but also the specific intent of aggravated mayhem (ante, part 2). By the applicable standard of review, substantial evidence is in the record to support the court's implicit findings of fact that K.R. acted with the separate specific intents of both crimes. (Moseley, supra, 164 Cal.App.4th at p. 1603.)
DISPOSITION
The judgment is affirmed.
________________
Gomes, J.
WE CONCUR: ________________
Wiseman, Acting P.J.
________________
Cornell, J.