Opinion
F053416
6-24-2008
THE PEOPLE, Plaintiff and Respondent, v. RICARDO DIAZ LOPEZ, Defendant and Appellant.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant Ricardo Diaz Lopez appeals from a judgment entered after a jury convicted him of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1) and mayhem (§ 203; count 2). The jury also found that defendant personally caused great bodily injury in the commission of the assault (§ 12022.7, subd. (a)). The court sentenced defendant to prison for an aggregate term of five years. On appeal, defendant contends: (1) the court was without jurisdiction to try him on count 2 because the court did not find probable cause at the preliminary hearing to hold him to answer on the mayhem charge; (2) there was insufficient evidence to support his subsequent conviction of mayhem; and (3) the court erred in failing to instruct on battery with serious bodily injury as a lesser included offense of mayhem. Defendants contentions primarily hinge on his assertion there was no evidence the facial scar he inflicted on the victim was permanent. For reasons discussed below, we find defendants assertions in this regard to be without merit and affirm the judgment.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
While walking across a bridge late at night, the victim Manuel Gomez was approached by defendant and codefendant Gregorio Diaz Lopez (the defendants). The defendants began punching Gomez in the face. Defendant then slashed Gomez in the face and arm with an unidentified object. After a bystander yelled out, the defendants ran away but were shortly stopped by police officers and identified by Gomez.
Gomez identified the defendants as his assailants but was unable to tell them apart due to their facial resemblance. However, Gomez reported the one who slashed him in the face was wearing camouflage pants. Officer Richard Cody testified that the defendants were brothers, and that defendant was wearing camouflage pants and his brother was wearing blue pants when the officer booked them into jail on the current charges.
As a result of the attack, Gomez sustained a cut on the left side of his face. The scar was still visible at the time of trial, six months later. Gomez also had a visible scar on his forearm. When questioned regarding how he felt about his scarring, Gomez testified: "I can barely work well. I feel bad." Gomez stated it hurt most, "[w]hen I lift heavy things or when I work hard and the heat it starts hurting." He confirmed that the scarring had not gone down in the last six months and that it hurt to laugh.
Jason Pritchard, the arresting police officer, was shown a photograph of Gomezs facial injury, and agreed it was a fair and accurate representation of what Gomezs face looked like at the time of trial. When asked to point out Gomezs facial scar in the photograph, Officer Pritchard testified: "This is the scar extending underneath his lip along his left side of his check to his left ear." Officer Pritchard estimated the scar was five to six inches long.
The defense
The defense did not dispute the alleged crimes occurred. Rather, the defense challenged the strength of the evidence identifying the defendants as Gomezs assailants. The defense presented two witnesses. First, a gang expert testified it was common for gang initiates, as part of the "jumping in" rite, to commit random acts of violence, and that gangs would often target immigrants because they often fail to report crimes committed against them. The gang expert knew a large number of gang members in Madera County but was unfamiliar with the defendants. Second, a criminalist testified he found no evidence of blood being present on clothing samples taken from Gomez and the defendants.
DISCUSSION
I. The courts jurisdiction to try defendant on count 2
At the conclusion of the preliminary hearing, defendant was held to answer on count 1 (assault with great bodily injury enhancement) but was not held to answer on count 2 (mayhem) of the complaint. The court made no factual findings regarding count 2, and the district attorney subsequently filed an information, again charging defendant in count 2 with mayhem. Under section 995, defendant moved to dismiss count 2 on the ground the evidence presented at the preliminary hearing was insufficient to support the charge. The court denied the motion.
On appeal, defendant contends the court was without jurisdiction to try him on count 2 because the court did not find probable cause at the preliminary hearing to hold him to answer on the mayhem charge, and because the prosecution presented no evidence at the preliminary hearing that the victims facial scar was permanent. (See People v. Hill (1994) 23 Cal.App.4th 1566, 1571 ["To prove mayhem based on a disfiguring injury, the injury must be permanent"].)
Preliminarily, we find defendants contentions are appropriately addressed as a challenge to the courts denial of his pretrial motion to dismiss count 2 under section 995. As noted above, the court at the preliminary hearing did not make any express factual findings which would preclude a mayhem charge, and defendant does not contend otherwise. Accordingly, the prosecution was within its rights to file an information charging defendant with mayhem. Following a preliminary hearing, the prosecution may charge the defendant with any offense shown by the evidence at the hearing, unless the judge made factual findings that preclude the charge. (§ 739; Jones v. Superior Court (1971) 4 Cal.3d 660, 664-666; People v. Manning (1982) 133 Cal.App.3d 159, 165.) "A mere refusal to hold to answer does not amount to a factual determination fatal to the charge." (People v. Superior Court (Day) (1985) 174 Cal.App.3d 1008, 1017.) Unless the judge made express findings of fact, we "cannot assume that he [or she] has resolved factual disputes or passed upon the credibility of witnesses." (People v. Slaughter (1984) 35 Cal.3d 629, 638.) Thus, the issue for us to decide is whether the court erred in denying defendants section 995 motion to dismiss count 2 in the information on the ground it was unsupported by the preliminary hearing evidence.
Under section 995, an information must be set aside on defendants motion if "the defendant had been committed without reasonable or probable cause." (§ 995, subd. (a)(2)(B).) A section 995 challenge may be directed to the entire information or to only portions thereof, including enhancement allegations. (People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 760-763 & fn. 4, disapproved on another point in In re Jovan B. (1993) 6 Cal.4th 801, 814, fn. 8.)
The applicable standard of review is settled:
"In determining if charges in an information can withstand a motion under section 995, neither the superior court nor the appellate court may reweigh the evidence or determine the credibility of the witnesses. [Citations.] Ordinarily, if there is some evidence in support of the information, the reviewing court will not inquire into its sufficiency. [Citations] Thus, an indictment or information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged. [Citations.]" (People v. Superior Court (Jurado) (1992) 4 CalApp.4th 1217, 1226.)
Furthermore:
"`Although there must be some showing as to the existence of each element of the charged crime [citation] such a showing may be made by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate. [Citation.] `Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. [Citations.] Thus, the ultimate test is that `"`[a]n information will not be set aside or prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it." [Citation.]" (People v. Superior Court (Jurado), supra, 4 Cal.App.4th at p. 1226, second, third & fifth bracketed insertions added.)
The appellate court "review[s] the evidence in support of the information to determine whether as a matter of law it is sufficient, not whether the trial courts ruling was reasonable. [Citations.]" (Ibid.)
Applying the above principles here, we conclude the evidence presented at the preliminary hearing was sufficient to support the permanent injury requirement of mayhem. At the preliminary hearing, which took place four months after the alleged offense occurred, Officer Pritchard testified that he had seen Gomez about two months earlier. At that time, Gomez appeared to have a facial scar which ran from "below his lip on the left side, approximately four to six inches towards his left ear." A rational trier of fact could infer from the officers description that the scar was permanent. Notwithstanding defendants assertions to the contrary, we believe evidence of the seriousness and persistence of the victims injury two months after the attack provided a rational ground for assuming the possibility the mayhem charge had been committed and defendant was guilty of it. (People v. Superior Court (Jurado), supra, 4 Cal.App.4th at p. 1226.) Because evidence establishing reasonable or probable cause was adduced at the preliminary hearing, the court did not err in denying defendants section 995 motion.
Defendant does not challenge the evidence concerning any of the other elements of mayhem, and thus implicitly concedes the sufficiency of the evidence supporting them.
II. Sufficiency of the evidence
Defendant similarly contends the trial evidence was insufficient to support his mayhem conviction because there was no evidence the victims facial scar was permanent. We disagree.
In assessing the sufficiency of the evidence to sustain a conviction, this court must view the entire record, including all reasonably deducible inferences, in the light most favorable to the judgment. The conviction will be upheld if it is supported by substantial evidence, i.e., evidence that is credible and of solid value. (People v. Osband (1996) 13 Cal.4th 622, 690 .) It is only when the evidence, so viewed, would not permit any reasonable trier of fact to have found the defendant guilty beyond a reasonable doubt that the judgment will be reversed. (Ibid.)
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."
In People v. Newble (1981) 120 Cal.App.3d 444, (Newble), the court, discussing the above term "disfigures," noted that "The word `disfigure is defined as: `to make less complete, perfect, or beautiful in appearance or character. (Websters Third New Internat. Dict. (1971) p. 649.)" (Newble, supra, 120 Cal.App.3d at p. 452.) Disfigurement must be permanent. (People v. Hill, supra, 23 Cal.App.4th at p. 1571.) Newble observed, "In Goodman [v. Superior Court (1978) 84 Cal.App.3d 621, (Goodman)], the court examined cases under statutes similar to our own and found that mere disfigurement constitutes mayhem `only where the injury is permanent. Thus, the cutting of a lip requiring several stitches but which would heal without serious scarring was not mayhem. [Citation.] [Citation.]" (Newble, supra, 120 Cal.App.3d at p. 452.) In Newble, the court concluded that the "infliction of a three-inch facial laceration which extends from the bottom of the left ear to just below the chin, which is likely to leave a permanent scar, constitutes disfigurement ...." (Newble, supra, 120 Cal.App.3d at p. 447, italics added.)
In Goodman, supra, 84 Cal.App.3d 621, the court "consider[ed] the question whether, as a matter of law, a five-inch wound inflicted on the victims face, resulting in no functional impairment, but in probable permanent disfigurement, could support a charge of mayhem." (Id. at p. 623, italics added.) The wound was a scar which extended approximately from the victims right eye to her mouth. (Ibid.) The court later concluded, "The facts before us show a victim whose face is terribly marred, probably for life, with all attendant emotional and even economic disabilities. [¶] While not every visible scarring wound can be said to constitute the felony crime of mayhem, we decline to say as a matter of law that the trier of fact could not reasonably conclude under Penal Code section 203 that mayhem was committed here." (Id. at p. 625, italics added.)
In People v. Keenan (1991) 227 Cal.App.3d 26 (Keenan), the defendant intentionally burned a womans breasts with a cigarette. The court concluded the womans injury involved a "serious permanent [fn. omitted] disfigurement" for purposes of Penal Code section 203. (Keenan, supra, 227 Cal.App.3d at pp. 35-36.) The omitted footnote stated, "In the absence of any evidence to the contrary, we assume that the scars [the woman] suffered, which remained three and one-half months after the attack, were permanent." (Id. at p. 36.) Likewise, in People v. Thomas (1979) 96 Cal.App.3d 507, a mayhem case involving disablement, the victims ankle was seriously disabled, and remained disabled for over six months. The court concluded, "Assuming that some slight and temporary disability would not arise to the level of mayhem, the disability here was sufficiently disabling, for an extended period of time to amount to mayhem." (Id. at p. 512.)
Here, the evidence was sufficient to show that the victim suffered from a permanent disability or disfigurement. Gomez testified the scars defendant inflicted had not diminished during the six months following the attack and indicated they still caused him pain and discomfort during day-to-day activities. Officer Pritchard confirmed the Gomezs facial scar, as depicted in the photograph admitted into evidence, was still visible, and described the scar as approximately five to six inches long, extending from below the lip to the left ear. If an injury that is "likely" to leave a permanent scar (Newble, supra, 120 Cal.App.3d at p. 447), or if a scar that results in "probable" permanent disfigurement (Goodman, supra, 84 Cal.App.3d at p. 623) may constitute the requisite disfigurement, and if scars which remain three and one-half months after an attack may be deemed permanent (Keenan, supra, 227 Cal.App.3d at p. 53), we believe the jury could reasonably conclude from the uncontroverted evidence that Gomezs sizable scar was still visible six months after the attack that his injury was permanent and constituted the requisite disfigurement.
Defendant attempts to distinguish this case from Newble on the ground that, there, the emergency room doctor who sutured the victims wound testified it was "likely to leave a scar." (Newble, supra, 120 Cal.App.3d 444 at p. 448.) However, defendant cites, and we are aware of, no authority requiring medical testimony to support the permanent serious injury/disability requirement of mayhem. Moreover, Keenan and other cases discussed above reflect other circumstances may be deemed sufficient to support an inference of permanency, particularly the circumstance that an injury or disability has persisted for an extended period of time. As set out above, the evidence here established that the victims scar remained visible six months after the attack and continued to hurt. On this record, we find sufficient evidence from which a reasonable trier of fact could have found beyond a reasonable doubt that the victim suffered a permanent disability or disfigurement.
III. Jury instruction on battery
Finally, defendant contends the court erred when it failed to instruct the jury on battery with serious bodily injury (§ 243, subd. (d)) as a lesser included offense to mayhem. Assuming, without deciding, that there was error, we find the error harmless. (People v. Seaton (2001) 26 Cal.4th 598, 667 [it is not reasonably probable that defendant would have obtained a more favorable outcome had the jury been instructed on the lesser included offense].)
To be found guilty of mayhem requires a finding that the disability or disfigurement is permanent. However, battery with serious bodily injury does not require that the impairment or disfigurement be permanent. (§ 243, subd. (d).)
As discussed, the prosecution presented considerable evidence the victim suffered from a permanent disability or disfigurement, and the defense did not present any conflicting evidence. Thus, it is not reasonably probable the jury would have convicted defendant of battery with serious bodily injury, rather than the charged offense of mayhem, if it had been instructed on the former offense.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
VARTABEDIAN, Acting P.J.
WISEMAN, J.