Opinion
E031611.
7-16-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID EARL WHITLEY, Defendant and Appellant.
M. Timothy Inkmann and Sandra L. Waite, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Andrew S. Mestman, and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant David Earl Whitley appeals his conviction on charges arising from acts of domestic violence. He asserts on appeal that the torture charge was unconstitutionally vague, that the evidence was insufficient to support conviction of the crime of torture, that the instructions on self-defense and false imprisonment were improper, and that the court erred in imposing a great bodily injury enhancement. We reject all of defendants claims, and we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Defendant first met the victim, Diane Jackson, in August of 2000. In September, Jackson told defendant she was pregnant. He had since left the area. Defendant returned to Barstow in the spring of 2001, however, and resumed his relationship with Jackson after the baby was born, in May of 2001. Defendant continued to date other women, however.
Defendant often took care of the baby during the day, while Jackson was at work, and would stay in Jacksons apartment overnight. When the baby was approximately six weeks old, Jackson gave defendant a key to her apartment.
On July 29, 2001, defendant stayed overnight in Jacksons apartment. He took care of the baby the next day. At 10:00 p.m., defendant took the baby to his mothers house. He then visited other friends, including Donna Brown, a woman whom he was dating. Jackson was under the impression that defendant was going to sleep at her home that night, although she did not know what time defendant planned to come home.
In the early morning hours of July 31, 2001, Jackson was asleep in the living room of her apartment. At approximately 2:30 a.m., she was awakened by defendant hitting her leg. Defendant demanded to know, "who was that guy on the couch?" Jackson told defendant that there had been no one on the couch. Defendant insisted he had seen someone through the window; he demanded that Jackson "tell him the truth" about whether a man had been in the house. Defendant continued punching Jacksons leg.
Seeing that defendant continued to hit her when she denied his accusations, she attempted to mollify him by saying that "Mark Purcer" had been there. Jackson did not know anyone named "Mark Purcer," and she made up the name to appease defendant.
Defendant punched Jacksons arm, then grabbed her hair and pulled her to the floor. Defendant next picked Jackson up and pushed her onto the couch. Defendant hit Jackson in the face, causing her nose to bleed. He thought she was smiling at him, so he punched her nose again. He began accusing Jackson of having sex with the non-existent "Purcer." Each time Jackson denied the accusations, defendant hit her again. Finally, hoping that defendant would stop hitting her, Jackson said that she had had sex with "Purcer." Defendant became further angered, however, and punched Jacksons nose again. Jackson suffered a bloody nose and bruising under her eyes.
Defendant thought he heard noises upstairs, and concluded that "Purcer" must be hiding there. Defendant and Jackson went upstairs, where defendant searched the rooms. Defendant grabbed Jacksons shoulders, forced her into her bedroom, and pushed her onto the bed. Defendant ordered Jackson not to move. She held her hands placatingly in front of her, and defendant hit her in the ribs.
Jackson was crying. Defendant ordered her to go into the bathroom and wash the blood from her face. Again, defendant thought Jackson was smiling or laughing at him, so he hit her in the back of her head.
They went downstairs. Jackson sat on the couch. Defendant was agitated, pacing back and forth, and breathing hard. Defendant punched Jackson again in the nose, and made her get a sheet to stop the blood from dripping on the carpet. Jackson went to the kitchen sink to wash her face again. When she returned to the living room, defendant was immediately behind her. He growled, "You might as well call the cops, this is it, I aint afraid to go to jail," and pushed Jackson to the floor. When Jackson started to get up, defendant struck her shoulder. At another attempt to get up, he struck a blow to her chest. Jackson was having difficulty breathing; defendant hit her in the chest again. After the second blow to the chest, Jackson lost control of her bladder functions and wet her pants.
Defendant then made Jackson go upstairs and take a bath. He himself disrobed and, afterward, they went downstairs again without dressing. Jackson asked defendants permission to get a glass of water from the kitchen. When she came back, she noticed a cast iron skillet, or frying pan, set on the coffee table in the living room.
Defendant commanded Jackson to get on her knees. When she refused, he grabbed her by the hair and forced her down onto her knees. He demanded that she put her chin back. Defendant stated that he was "going to put some lights out," and struck Jackson a stunning blow to the head with the skillet. She was able partially to block the blow with her arms, but her ears rang for several minutes and it was all she could do not to faint.
After enduring this ordeal for several hours, at approximately 7:00 a.m., Jackson told defendant she had to get ready to go to work. Defendant asked for money; Jackson said she would borrow some from relatives and bring it to him. As Jackson was dressing, he asked what she would tell her employers about her nose; she assured him that she would say she had run into a door. Jackson drove defendant to his car. He asked how long he had before she called the police; again, she assured him that she would not call the police because she did not want him to go to jail.
After letting defendant out of the car, Jackson drove to a relatives house where she explained what had happened. The relatives reported the incident to the police. Officer David Parker of the Barstow Police Department responded to the call. When he saw Jackson, she was cut, bruised, crying and shaking. He photographed her injuries and had her transported to the hospital.
At the hospital, emergency room physicians noted bruises to Jacksons forearms, shoulders, and thighs. She had a cut over the bridge of her nose. X-rays showed that Jacksons nose had been fractured.
Defendant testified in his own behalf at trial. His version of events was that Jackson had paged him three times in the early morning hours of July 31, 2001. He went to Jacksons house and saw a ladder at the back window. He thought there might be a burglar inside. Defendant looked in the window, and saw Jackson on the couch, having sex with another man.
Defendant went in and demanded that Jackson tell her friend to leave; Jackson denied that anyone had been there. Defendant struck Jackson on the leg and the shoulder, repeating that she should tell the man to leave. Defendant was upset because he believed Jackson was lying. Finally, Jackson said that the man had left through an upstairs window.
According to defendant, they then sat on the couch in the living room and talked. They began to argue. As defendant got up and walked away, Jackson pushed him; defendant then back-handed her in the face, cutting a knuckle on her tooth. Defendant denied hitting Jackson in the stomach or chest, and he denied repeated punching to the leg or shoulder. He denied hitting Jackson with a skillet. He further testified that he never threatened to put Jacksons "lights out."
Defendant was charged with torture, corporal injury to a domestic partner, false imprisonment, two counts of assault with a deadly weapon, and one count of making criminal threats. The information also alleged, as to the first five counts, that defendant had inflicted great bodily injury on the victim, and that the injury was inflicted during a crime of domestic violence.
Penal Code section 273.5, subdivision (a).
Penal Code section 245, subdivision (a)(1).
Penal Code section 12022.7, subdivision (a).
Penal Code section 12022.7, subdivision (e).
The jury found defendant guilty of torture, corporal injury, false imprisonment, one of the assault with a deadly weapon charges, and making a criminal threat. As to the remaining assault with a deadly weapon charge, the jury found defendant guilty of a lesser included offense of misdemeanor assault. The jury found true all the special allegations with respect to counts 1-5.
The court imposed a life term for count 1, the torture offense, plus four years for the domestic violence special allegation as to count 1. The sentences on the remaining counts were stayed pursuant to Penal Code section 654.
Defendant now appeals.
ANALYSIS
I. The Crime of Torture in Penal Code Section 206 Is Not Unconstitutionally Vague
Defendant asserts that Penal Code section 206, defining the crime of torture, is unconstitutionally vague.
Penal Code section 206 provides in relevant part: "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."
Defendant argues that the terms "cruel and extreme pain and suffering," and "sadistic purpose" are vague as applied in this case. We disagree.
First, the terms in themselves are not unconstitutionally vague.
In People v. Aguilar, the Court of Appeal held that these terms were not unconstitutionally vague. "In section 206, the word cruel modifies the phrase pain and suffering. In at least two other cases, courts have held that cruel pain is the equivalent to extreme or severe pain. [Citations.] This definition comports with the common dictionary definition of cruel (see Websters New Internat. Dict. (3d ed. 1965) p. 546 [as an adjective, cruel means extreme or severe]), and, in our view, is a reasonable and practical interpretation of that phrase [Citation]. We therefore conclude that the phrase cruel or extreme pain and suffering, as used in section 206, is not unconstitutionally vague."
People v. Aguilar (1997) 58 Cal.App.4th 1196.
People v. Aguilar, supra, 58 Cal.App.4th 1196, 1202, footnote omitted.
In People v. Raley, the California Supreme Court held that the term "any sadistic purpose" was not unconstitutionally vague or overbroad. It stated that "sadistic purpose" "is a term in common usage, having a relatively precise meaning, that is, the infliction of pain on another person for the purpose of experiencing pleasure." In People v. Aguilar, supra, the Court of Appeal, following Raley, "also concluded that the common meaning of sadistic purpose, the infliction of pain on another person for the purpose of experiencing pleasure [citation], is sufficiently definite to provide "a standard of conduct for those whose activities are proscribed and . . . a standard for police enforcement and for ascertainment of guilt."" We agree with and adhere to these analyses.
People v. Raley (1992) 2 Cal.4th 870, 830 P.2d 712.
People v. Raley, supra, 2 Cal.4th 870, 901.
People v. Aguilar, supra, 58 Cal.App.4th 1196, 1203.
Second, defendants "as applied" challenge is also without merit. The standards to be applied are well-established. "All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears. [Citations.]" "It is equally well settled that the person attacking the statute bears the burden of demonstrating its invalidity."
The Attorney General fails to address the "as applied" vagueness challenge.
People v. Ramirez (1997) 55 Cal.App.4th 47, 54.
People v. Ramirez, supra, 55 Cal.App.4th 47, 54.
"Reasonable certainty is all that is required of a statute. [Citations.] We are unconcerned that the statute may be difficult to apply. A difficult standard does not make a statute unconstitutionally vague. [Citation.] Statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. [Citations.]"
People v. Rodriquez (1975) 50 Cal. App. 3d 389, 399, 123 Cal. Rptr. 185, footnote omitted.
"The rule is well established," also, "that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and that a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations. [Citation.] If the statute clearly applies to a criminal defendants conduct, the defendant may not challenge it on grounds of vagueness. [Citations.]" Thus, "if an accused can reasonably understand by the terms of the statute that his conduct is prohibited, the statute is not vague [citation]. In determining the sufficiency of the notice, a statute must of necessity be examined in the light of the conduct with which the defendant is charged [citation]."
Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1095, 892 P.2d 1145.
People v. Anderson (1972) 29 Cal. App. 3d 551, 561, 105 Cal. Rptr. 664.
Defendant has not indicated any manner in which he was not on notice that his conduct would be proscribed by the torture statutes prohibition against inflicting "cruel and extreme pain and suffering" for a "sadistic purpose." He subjected Jackson to an ordeal of beating which lasted, off and on, for several hours. He punched her repeatedly in the arms, legs, shoulders, nose and chest. The blows were sufficient to break facial bones, cut Jacksons face, bruise various parts of her body, nearly cause her to lose consciousness, impede her breathing, and cause her to lose control of her bodily functions.
The evidence plainly supports the inference that defendant inflicted the beating for purposes of revenge, persuasion, or for his own pleasure. Indeed, little other purpose can be conceived for defendants intrusion into the situation at all. The duration of the attack also bespeaks the desire to inflict pain for pains sake. Jackson was crying, and she asked him repeatedly not to hit her; instead, defendant continued the attack. At one point, he struck Jackson in the chest so hard that she had difficulty breathing. When she told him she could not breathe, he taunted her, "Do you need help breathin?" and hit her in the chest again.
The conduct with which defendant was charged here clearly comes within the prohibition of the torture statute against infliction of "cruel and extreme pain and suffering" for "any sadistic purpose." The statute was not unconstitutionally vague as applied to defendant.
II. The Evidence Was Sufficient to Support the Torture Conviction
Defendant contends the evidence at trial was insufficient to support his conviction of the crime of torture, in violation of Penal Code section 206. In reviewing this challenge, we consider "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."
People v. Koontz (2002) 27 Cal.4th 1041, 1078, citing Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [99 S. Ct. 2781, 2788-2789, 61 L. Ed. 2d 560] and People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.
The evidence below is sufficient to meet this standard. The record discloses that defendant beat Jackson repeatedly over a period of several hours. He broke her nose; he punched her in the chest hard enough that she had difficulty breathing, he mocked her difficulty and struck her again, so severely that she involuntarily wet her pants. He bragged, "You might as well call the cops, this is it, I aint afraid to go to jail." He threatened to "put some lights out," and dealt her a savage blow to the temple with a cast iron skillet he had taken from the kitchen for the purpose.
"Here, there is ample evidence [defendant] acted with the willful, deliberate and premeditated intent to inflict extreme and prolonged pain," and that he did so for purposes of revenge, persuasion or "any sadistic purpose," e.g., to punish her for her supposed infidelity. The jury could properly conclude on the evidence that defendant "derived a perverse pleasure from beating [Jackson]."
People v. Healy (1993) 14 Cal.App.4th 1137, 1141.
People v. Healy, supra, 14 Cal.App.4th 1137, 1141-1142.
III. The Instructions Concerning the Burden of Proof on the Defense Claims of "Self-defense" and "Consent to False Imprisonment" Were Proper
At trial below, defendant raised issues of alleged self-defense, with respect to the domestic partner abuse count, and the lesser included offenses of battery and assault. In addition, he asserted consent as a defense to the false imprisonment count. He contends that, in instructing the jury on these matters, the court was required to inform the jury that defendant was required only to raise a reasonable doubt as to the existence of self-defense or consent. He argues that the courts alleged failure to so instruct requires reversal as to the domestic partner abuse and false imprisonment counts.
We find the contentions without merit. The court instructed the jury with CALJIC No. 9.00, which clearly informed the jury that the prosecution was required to prove beyond a reasonable doubt that "the application of physical force was not in lawful self-defense," and that "if you have a reasonable doubt that the application of force was unlawful, you must find the defendant not guilty of the charged crime and/or lesser offenses to which the self-defense pertains . . . ." It is difficult to see on this record, in any event, how defendants conduct could be construed as self-defense of any kind.
Likewise, the court instructed the jury, as to the false imprisonment count, that the People bore the burden of proving beyond a reasonable doubt all the elements of the offense, including the element that the victim did not consent to the restraint, confinement or detention. Nothing more was required.
IV. The Court Properly Imposed an Enhancement Under Penal Code Section 12022.7, Subdivision (e)
Defendant contends that the trial court erred in enhancing his torture sentence under section 12022.7, subdivision (e). More specifically, he contends that his sentence may not be enhanced by the great-bodily-injury enhancement enumerated in Penal Code section 12022.7, subdivision (e), because the crime of torture already includes great bodily injury as an element. We reject the contention.
As relevant here, Penal Code section 12022.7, subdivision (e) provides: "Any person who personally inflicts great bodily injury under circumstances involving domestic violence 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, four, or five years. . . ."
In addition to the domestic-violence great-bodily-injury enhancement provided in subdivision (e), Penal Code section 12022.7 provides additional enhancements for great bodily injury inflicted on a person other than an accomplice, during the commission or attempted commission of the offense, on a person over the age of 70, or on a child under the age of five. Each one of these subdivisions specifies that the enhancement is not permitted when infliction of great bodily injury is an element of the offense of which he or she was convicted. However, section 12022.7, subdivision (e) did not contain this limitation; no such limiting language was added, even when the Legislature rewrote the section in the year 2000. Thus, when a defendant inflicts great bodily injury under circumstances involving domestic violence, the Legislature has evidently intended that the enhancement shall be imposed, in addition and consecutive to the punishment [* 20] prescribed, even if infliction of great bodily injury is an element of the offense the defendant committed.
Subdivisions (a), (b).
Subdivision (c).
Subdivision (d).
Accordingly, the trial court did not err in enhancing defendants torture sentence under section 12022.7, subdivision (e).
DISPOSITION
The judgment is affirmed.
We concur McKinster, Acting P.J., and Gaut, J.