Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. Nos. SF348796A & SC63604A
RIVERA, J.
Marcus D. Washington appeals from a judgment upon a jury verdict finding him guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), assault with a firearm (§ 245, subd. (a)), mayhem (§ 203), and torture (§ 206). The jury also found true numerous alleged enhancements including personal and intentional discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)), serious felony allegations (§ 1192.7), personal infliction of great bodily injury (§ 12022.7, subd. (a)), and personal use of a firearm (§ 12022.5, subd. (a). Defendant contends that the evidence is insufficient to support the torture conviction and that the torture statute is unconstitutionally vague. We affirm.
All further statutory references are to the Penal Code.
I FACTS
By December 11, 2006, Michael Booker had known defendant for approximately four or five years. Booker was a narcotics user and had purchased drugs on at least five occasions from defendant in the two years preceding December 11. During this period, Booker purchased drugs from others approximately every two to three days. Defendant was aware that Booker bought drugs from others and often insulted him by calling him a “punk motherfucker” or “bitch.” Defendant also threatened Booker several times, and about six to ten months before the shooting, he assaulted him. At the time of the assault, Booker was buying drugs from another individual. Booker continued to buy drugs from other individuals and defendant continued to threaten him by asking, “You remember what happened last time?”
At approximately 8:00 p.m. on December 11, 2006, Booker went to 1124 Mello Street in East Palo Alto to meet Vic, a drug dealer. While he was standing in the front yard of the house, defendant and Ronnie Meachum approached him. Defendant said, “Why do [you] act funny style.” Defendant then hit him on the left side of his head. Booker hit defendant back in the head, knocking him to the ground.
Defendant got up and reached for the crotch of his pants and pulled out a gun. He pointed it at Booker and shot him in the leg. Booker tried to walk but fell to the ground. Defendant leaned over Booker and hit him in the face with the butt of the gun in his left cheek, saying “[y]ou thought I was a punk, didn’t you, bitch.” Booker’s cheek bled and he suffered internal bleeding in his sinuses. He could not stand up and defend himself. Defendant and Meachum proceeded to go through Booker’s pockets as he lay on the ground, but found nothing of value.
Defendant next stood at Booker’s feet and pointed the gun at his groin area. Defendant turned his head and pulled the trigger. Booker saw “the fire coming right at me” and yelled. Booker was checking to see where he had been shot when defendant fired a third shot at his chest, hitting him in his left elbow. Booker’s left elbow had been positioned close to his chest area. Booker faked his last breath and pretended to be dead. Defendant and Meachum fled. Booker waited about 45 seconds before yelling for help.
Ioane Masuisui was driving his car near Mello and Menalto Streets when he heard a loud moaning noise. Masuisui stopped his car and turned down his radio. He then heard a call for help. He exited from his car and saw Booker on the ground. Booker’s face was “pretty marked up” and he could not get up. He yelled “just call 911.” Masuisui called 911.
The police arrived within two to three minutes. They found Booker conscious and breathing, he was bleeding and had obvious injuries. Paramedics arrived and began treatment. The paramedics had to cut Booker’s clothes off because they were soaked with blood. Booker was able to tell Officer Kalb that defendant was the perpetrator. Kalb attempted to get a statement, but Booker who was in “obvious pain” was preoccupied with the paramedics. Deputy Grosso took photographs of Booker and the scene and testified that it was a “pretty bloody scene” and that the photographs did not “do justice to when you’re actually on scene.”
The paramedics took Booker to Stanford Hospital where he underwent surgery and was hospitalized for nine days. Kalb was not able to interview Booker upon his arrival at the hospital because he was immediately given morphine for pain. Booker was evaluated in the trauma department and found to have multiple gunshot wounds including one to his leg. Booker suffered an injury to the left side of his face, and gunshot wounds to his left elbow, buttocks, and his right thigh. The gunshot wound to the thigh resulted in a severe fracture of Booker’s femur. There were multiple breaks in the femur, the bone that extends between the hip and the knee. Booker underwent surgery immediately to remove the bullets in his leg and elbow. The wound to his leg was a very significant injury carrying a high risk for infection. Booker subsequently underwent an additional operation to attempt to realign the bones in the femur and to put in a plate and screws. Booker testified that he continues to suffer from his injuries—“one wrong step on my leg and [I] regret it for hours.” He limps and his right leg is now about an inch and a quarter shorter than the left leg.
The parties stipulated that G. Andrew Smith, a criminologist, examined the bullets removed from Booker and determined that they were fired from the same gun.
Booker identified defendant in a photo line-up on December 12, 2006.
II. DISCUSSION
Defendant contends that there is insufficient evidence to support the torture conviction because the evidence demonstrating that he had the specific intent to cause cruel or extreme pain for revenge, extortion, or persuasion, or any sadistic purpose is lacking. He argues that the incident was a “garden variety” assault.
We review the judgment under the substantial evidence standard. (People v. Hatch (2000) 22 Cal.4th 260, 272.) Under this standard, we must review “ ‘the whole record in the light most favorable to the judgment’ and decide ‘whether it discloses substantial evidence... such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (Ibid., quoting People v. Johnson (1980) 26 Cal.3d 557, 578.) If the circumstances reasonably justify the verdict, we cannot reverse merely because a contrary finding might also be reasonably deduced from the circumstances. (People v. Redmond (1969) 71 Cal.2d 745, 755.) We will reverse only if it “clearly appear[s] that upon no hypothesis whatever is there sufficient substantial evidence to support [the judgment].” (Ibid.)
Section 206 provides that the crime of torture is committed when “with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, [the perpetrator] inflicts great bodily injury... upon the person of another....” The crime has two elements: (1) the infliction of great bodily injury; and (2) the specific intent to cause cruel or extreme pain and suffering for revenge, extortion, persuasion, or any sadistic purpose. (People v. Burton (2006) 143 Cal.App.4th 447, 452-453 (Burton).)
Defendant does not contest the great bodily injury element of the crime but argues that the evidence is insufficient to prove that he had the specific intent to cause pain and suffering.
“Direct evidence of specific intent is rarely available, although the circumstances surrounding the offense or other circumstantial evidence may permit an inference that one acted with the intent to inflict cruel or extreme pain.” (People v. Misa (2006) 140 Cal.App.4th 837, 843 (Misa).) For example, the jury may consider the severity of the wounds in determining whether a defendant intended to torture. (Burton, supra, 143 Cal.App.4th at p. 452, see, also People v. Mincey (1992) 2 Cal.4th 408, 433 [condition of the victim’s body may establish evidence of the requisite intent].) In addition, “ ‘scarring and disfigurement constitute strong circumstantial evidence of intent to inflict severe pain and suffering.’ ” (Burton, supra, 143 Cal.App.4th at p. 452.) And, a defendant’s focus on attacking a vulnerable area also raises an inference of intent to cause extreme pain. (Ibid.) Finally, a defendant’s prior threats to the victim can suggest the intent to cause extreme or severe pain. (Ibid.)
Here, the totality of the evidence supported the jury’s finding that defendant tortured Booker. Defendant focused his attack on two vulnerable areas—he struck Booker in the face with the butt of a gun and he aimed to shoot him in the groin area. The jury could, thus, have inferred that defendant intended to cause extreme pain. (See Burton, supra, 143 Cal.App.4th at p. 452 [a defendant’s focus on attacking the face rather than indiscriminately attacking the victim evidenced an intent to cause extreme pain].) Defendant’s argument that this evidence does not show an intent to cause pain and suffering because the shot between the legs was coincidental is disingenuous. Booker was on the ground at the time and could not stand up or defend himself. Defendant’s shot toward Booker’s groin under these circumstances reflects “a calculated purpose of causing [Booker] to suffer.” (Misa, supra, 140 Cal.App.4th at p. 843.) Moreover, the evidence showed that defendant had previously threatened and assaulted Booker, taunting him at times after the assault, saying “You remember what happened last time”; and that he committed the crime as revenge for Booker’s use of other dealers for his drug purchases.
Defendant’s reliance on the concurring and dissenting opinion of Justice McIntyre in People v. Pre (2004) 117 Cal.App.4th 413 is misplaced. Although Justice McIntyre opined that the torture statute had been expanded “by judicial accretion, to any assault in which the victim suffers ‘great bodily injury’ ” (id. at p. 426 (dis. opn. of McIntyre, J.)), the majority opinion explains “that for a torture conviction the jury must not only find the defendant inflicted great bodily injury but also that the defendant intended to do so for the purpose of revenge, extortion, persuasion, or some other sadistic purpose. This additional intent requirement distinguishes the offense of torture from an aggravated assault and is clearly a matter for a jury to determine” (id. at p. 423). The evidence in Pre indicated that the defendant bit the victim’s ear after the initial struggle between the victim and the defendant had ended, and after he had choked the victim into unconsciousness. The court determined that this evidence was sufficient to support the inference of a separate sadistic purpose to inflict great bodily injury and pain. (Id. at pp. 423-424.) Here, too, Booker was already on the ground with a bullet wound in his leg and unable to defend himself when defendant whipped him in the face with the butt of the gun, shot at his groin, and fired a third shot at his chest. This was not a simple “argument over business transactions.” Rather, defendant’s acts demonstrated an intent to inflict pain for revenge, not just to engage in an assault.
The circumstances here also showed defendant’s callous indifference to Booker’s need for medical attention. Not only did he continue to inflict serious injuries upon Booker after the initial gun shot wound, he fled when Booker feigned death. (Misa, supra, 140 Cal.App.4th at p. 843 [indifference to victim’s need for medical intervention supported the inference of an intent to cause cruel pain and suffering].) In sum, substantial evidence supports the torture conviction.
Defendant also argues that section 206 is unconstitutionally vague. He argues that the terms, cruel or extreme pain and suffering, revenge, any sadistic purpose, and torture are vague.
Under both the state and federal Constitutions, to withstand a claim of statutory vagueness, due process requires that the statute “ ‘ “be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.” ’ ” (Williams v. Garcetti (1993) 5 Cal.4th 561, 567.) In People v. Aguilar (1997) 58 Cal.App.4th 1196, the Appellate Court considered the issue of whether section 206 was unconstitutionally vague and determined that the terms cruel or extreme pain and suffering, any sadistic purpose, and torture were terms in common usage with sufficiently precise and definite meanings to withstand a challenge on the ground of vagueness. (Id. at pp. 1200-1205.) We agree with the reasoning of Aguilar that the language of section 206 meets the standards of precision and certainty required and is not unconstitutionally vague. (See also People v. Raley (1992) 2 Cal.4th 870, 901 [sadistic purpose is not a vague term as it has a relatively precise meaning—the infliction of pain on another person for the purpose of experiencing pleasure].)
We also reject defendant’s argument that the term, revenge, in section 206 is unconstitutionally vague. He contends that inclusion of revenge in the statute renders virtually any aggravated assault resulting in great bodily injury a violation of section 206. As explained in People v. Hale (1999) 75 Cal.App.4th 94, 108, however, the crime of torture focuses on the perpetrator’s mental state and not the actual pain inflicted. “In this respect, revenge, extortion, and persuasion are self-explanatory.” (People v. Massie (2006) 142 Cal.App.4th 365, 371.) As the term revenge has a common and settled meaning, its inclusion in section 206 does not render the statute unconstitutionally vague.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.