Violent Crimes, generally
Category > Violent Crimes, generally
Updated 2/26/2024Conviction for assault under color of authority was reversed where one of the two theories urged by the prosecution was invalid and the record did not show which theory the jury adopted. Defendant was a police officer who used force against a private citizen during an arrest. He was convicted of unnecessarily assaulting a private citizen while acting under color of authority under Penal Code section 149. The prosecution proceeded under two theories 1) defendant could not use any force because the visit to the victim’s house to effectuate a custody transfer and subsequent arrest were unlawful, and 2) defendant used excess force in making the arrest. However, the first theory was invalid since an unlawful arrest is not sufficient to support a conviction under section 149. The conviction was reversed because the record did not show which theory the jury adopted.id: 26239
Updated 2/1/2024Simple assault is a lesser included offense of infliction of corporal injury.Defendant’s conviction for misdemeanor assault under Penal Code section 240 had to be reversed because it was a lesser included offense of his conviction for inflicting corporal injury resulting in a traumatic condition under section 273.5.id: 27977
Failure to prove harbor patrol officer was a peace officer required reversal of conviction for battery of a peace officer. Defendant was convicted of misdemeanor battery of a peace officer in violation of Penal Code sections 242/243(b). The victim was a member of the City of Santa Barbara harbor patrol. Unlike most police officers, harbor patrol officers are peace officers only if their primary duty is law enforcement when acting on the property or when performing necessary duties anywhere in the state. The prosecution failed to prove the victim had the required primary duty of law enforcement. The conviction was reversed.id: 25328
The five year time limit established in Prop 66 is “directive” rather than “mandatory,” and as such it does not violate the separation of powers doctrine.The time limits established by Prop 66 requiring postconviction proceedings to be completed within five years of death verdict, does not violate the state constitution’s separation of powers provision because the time-limit is “directive” rather than “mandatory.”id: 25345
Irritation to the juvenile hall deputy’s eye after the spitting incident did not constitute an injury under the felony battery with injury provision. The juvenile court did not err by permitting the prosecution to amend the wardship petition to allege a battery with injury charge based on the minor’s spitting in the eye of a juvenile hall deputy where the amendment was added before trial after sufficient notice. However, the evidence was insufficient to support the finding that the minor violated Penal Code section 243, subd.(c) , because while the officer’s eye was irritated there was not an actual physical injury. The offense was reduced to simple battery.id: 24068
The mayhem instruction was erroneous for requiring proof of serious bodily injury rather than a disabling injury. Penal Code section 203 defines the offense of simple mayhem and provides a few examples of how the offense can be committed. It requires a disabling injury and makes no mention of “serious bodily injury.” The pattern instruction on mayhem (CALCRIM No. 801) requires the prosecution to prove that the defendant caused serious bodily injury. The instruction is erroneous because serious bodily injury is not an element, but the error here was harmless where the evidence was strong that defendant intended to inflict a disabling injury.id: 23214
The trial court erred by failing to instruct that the parental discipline defense applied to the assault count involving defendant’s son.Defendant was charged with assault and felony child abuse. The trial court erred by failing to instruct sua sponte on the defense of the parental right to employ reasonable discipline with respect to the assault count involving his son. However, since the jury necessarily rejected the claim of justifiable discipline in connection with the child abuse count, any error in failing to give the instruction for the assault was harmless.id: 22506
The trial court erred in giving an instruction on attempted mayhem that focused on the means defendant intended to inflict the wound rather than its severity, and that was argumentative and favored the prosecution. Defendant was convicted of attempted mayhem. The trial court erred by instructing the jury on the offense of mayhem, by specifically stating that a “gunshot wound” could be a “serious bodily injury.” By omitting the examples provided in the instruction, and inserting the phrase “a gunshot wound” as an example of what may constitute a serious bodily injury for mayhem purposes, the court directed the jury to focus on the means by which defendant intended to inflict the wound, rather than the severity of the wound. Moreover, by listing the gunshot wound as an example, the court provided a grossly misleading and argumentative instruction that favored the prosecution.id: 22459
The trial court erred by failing to instruct that voluntary intoxication could be considered when assessing specific intent to torture.The trial court erred by omitting torture from the list of specific intent offenses in which his voluntary intoxication could be considered. However, the error was harmless where the jury necessarily determined that defendant’s intoxication did not prevent him from forming the specific intent necessary to convict him of the other crimes.id: 22556
Battery by gassing is a necessarily included offense of battery by a prisoner on a nonprisoner.Battery by gassing in violation of Penal Code section 4501.1 is a necessarily included offense of battery by a prisoner on a nonprisoner in violation of section 4501.5. Once the jury found defendant guilty of the latter, he could not be convicted of the former.id: 21077
Assault by means of force likely to produce great bodily injury under section 245, subd. (a)(1) is a lesser included offense of aggravated assault on a child resulting in death under section 273ab.Defendant was convicted of aggravated assault on a child under Penal Code section 273ab. She argued the court erred in refusing to instruct on assault by means of force under section 245, subd. (a)(1) as a lesser included offense. After reversing, the conviction on other grounds the court suggested the possibility without deciding, that the force element in section 273ab may be more restrictive than that in section 245, subd. (a)(1). Nevertheless, the court suggested section 245, subd. (a)(1) is a lesser included offense and the trial court should so instruct at a retrial if it finds substantial evidence of the lesser offense.id: 16595
A juvenile probation counselor was not a custodial officer for purposes of section 243.1, battery against a custodial officer.Penal Code section 243.1, battery against a custodial officer, does not apply to a battery committed upon a probation counselor working in a juvenile hall. The matter was reversed and remanded for further proceedings to determine the proper disposition.id: 9674
The trial court erred in instructing the jury that battery can be committed with criminal negligence.Defendant was charged with battery with serious bodily injury, a general intent crime. Accordingly, the jury should only have been instructed with CALJIC 3.30, the standard instruction on general criminal intent. The trial court erred in further instructing the jury that it could convict defendant if it found that he acted with the lesser mental state of criminal negligence. The error required reversal where defendant's state of mind was the key issue in the case.id: 9713
Mental state for assault requires actual knowledge of the facts sufficient to establish that defendant's act by its nature would probably and directly result in an injury to another. Assault is a general intent crime. The mens rea for assault is established upon proof that the defendant willfully committed an act that by itself would probably and directly result on injury to another. Moreover, the assault requires actual knowledge of the facts sufficient to establish that the defendant's act by its nature will probably directly result in the injury to another. The instruction given in the present case was flawed because the jury could conceivably have convicted defendant even if he did not actually know the relevant facts. However, the instructional error was harmless where defendant's admissions described the requisite knowledge.id: 16444
The evidence did not support convictions of corporal injury to a cohabitant where there was no evidence of injury from a beating as the incidents were not reported, the alleged victim was never treated, and there were no witnesses.The evidence was insufficient to support two corporal injury to a cohabitant counts because there was no evidence those incidents caused a traumatic condition. A "traumatic condition" for these purposes is an injury caused by physical force. Defendant was alleged to have hit the victim with a curtain rod (the rod used to open vertical blinds). While the victim was injured from one incident, she did not report and was never treated for injuries received from the other two incidents. Moreover, there were no witnesses to these alleged events. The evidence did not show a traumatic condition resulting from a beating as to the two latter counts. id: 17185
Battery on an officer statutes violate equal protection principles because they permit prosecutors to arbitrarily subject violators who commit lesser acts to greater punishment than those committing more serious acts.Battery on a custodial officer may be punished as a felony under Penal Code section 243.1, a misdemeanor under section 243, subd.(b) or a wobbler under section 243, subd.(c) which contains the additional requirement of an injury. The statutes violate equal protection principles because they permit prosecutors to arbitrarily subject violators who commit less egregious conduct to greater punishment than those committing more serious acts.id: 16911
Court erred by imposing a great bodily injury enhancement which was an element of the battery charge.Great bodily injury, as defined in the Penal Code section 12022.7 enhancement, is an element of the crime of battery with serious bodily injury under section 243 subd. (d). It was therefore erroneous to impose the consecutive three year enhancement following conviction on the battery charge.id: 9690
Battery with serious injury is a lesser included offense of aggravated mayhem.Defendant's conviction for battery with serious bodily injury under Penal Code section 243, subd.(d) was a lesser included offense of aggravated mayhem, of which he was also convicted. Therefore, the conviction for the former was reversed. id: 18886
Assault on a peace officer conviction does not constitute a strike unless the prosecution proves use of a deadly instrument.Unless the prosecution proves beyond a reasonable doubt that a defendant's prior assault on a peace officer conviction under former Penal Code section 245, subdivision (c) was based on use of a deadly weapon or instrument, either personally or by an accomplice, it cannot be treated as a serious felony for purposes of the three strikes law.id: 9325
Evidence did not support the spousal abuse conviction where defendant slapped his wife several times but there were no injuries.Defendant was convicted of spousal abuse under Penal Code section 273.5, subdivision (a) after it was determined that he slapped his wife several times. However, the evidence did not support the conviction because, despite the slapping, there was no corporal injury resulting in a traumatic condition within the meaning of the provision. The conviction was reduced to battery.id: 9695
Court erred in imposing the upper term for mayhem based on the fact that the victim suffered great bodily injury.The trial court erred in imposing the aggravated sentence for mayhem based on the fact the victim suffered great bodily injury because great bodily injury is an element of the offense.id: 9691
Evidence was insufficient to sustain a finding of battery on a peace officer under section 243, subdivision (c) because the officer did not receive medical treatment.The juvenile court erred in sustaining the finding of battery against a peace officer resulting in injury pursuant to Penal Code section 243, subdivision (c), despite the officer's testimony that defendant kicked him in the groin. The officer stated that he did not seek treatment from the paramedics who arrived on the scene. Although the officer did say that he was treated later at the hospital, this did not constitute substantial evidence that medical treatment was either offered or recommended by the physician. Because there was insufficient evidence that the officer sustained an injury which required professional medical treatment, the finding was reversed and the disposition order was modified to reflect a violation of simple battery on an officer.id: 9699
Officer's testimony regarding soreness caused by the minor's kicking was insufficient to support the conviction of battery with injury on a peace officer.Minor was alleged to have committed a battery with injury on a peace officer pursuant to Penal Code sections 242 and 243, subdivision (c). The officer testified he was kicked by the minor which caused soreness in his chest and chin. The officer did not seek medical treatment or document the injuries. Under section 243, subdivision (f)(6), the injury must be one requiring professional medical treatment although there is no requirement the victim actually receive medical treatment. However, absent further detail about the officer's soreness the evidence was insufficient to support the section 243, subdivision (c) violation and the offense was reduced to simple battery on a peace officer.id: 9706
HIV-positive adult male who knows of his status and has unprotected sex with a minor without disclosing the facts does not commit an aggravated assault.An HIV-positive adult male who is aware of his HIV-positive status and has unprotected consensual sexual intercourse with a minor without disclosing his HIV-positive status may not be held to answer on a charge of assault in violation of Penal Code section 245, subdivision (a)(1). There was no rational basis for assuming the possibility that the defendant was "likely to produce great bodily injury."id: 15328
Section 273.5 is not violated unless the corporal injury results from a direct application of force on the victim by the defendant.Defendant did not violate the corporal injury on a cohabitant statute (Penal Code section 273.5) where the victim's injuries resulted from her attempt to escape rather than the battery. The judgment was modified to reflect a conviction of the lesser necessarily included offense of battery against a cohabitant in violation of section 243, subd. (e)(1).id: 15329
Punching and kicking did not establish specific intent to permanently disable for aggravated mayhem.Evidence was insufficient to establish the specific intent element of aggravated mayhem. Defendant punched his victim in the face three times and kicked him at least twice. The evidence showed no more than a sudden, indiscriminate, and unfocused battering of the victim's body. While this evidence undoubtedly showed extreme indifference to the victim's well-being, it did not show a controlled, directed attack from which a jury could reasonably have inferred that defendant specifically intended to disable the victim permanently.id: 9708
Officer's assertions of the gang's criminal conduct was insufficient to convict defendants under the new anti-gang provision.Evidence was insufficient to support a conviction under Penal Code section 186.22, subdivisions (a) and (b) (knowing participation in a criminal street gang and commission of a crime for the benefit of the gang) where the evidence failed to establish that the Fink White Deuces are a criminal street gang engaged in a pattern of criminal activity. A police officer testified that members of the group committed crimes but did not specify who, when, where and under what circumstances the offenses were committed. Such expert testimony based on non-specific hearsay and arrest information did not constitute substantial evidence that the Fink White Deuces are a criminal street gang as defined by statute.id: 9705
Evidence was insufficient to show a pattern of criminal gang activity by the BTR gang within the meaning of the anti-gang provision.Minor was found to have participated in a criminal street gang pursuant to Penal Code section 186.22(a). However, no evidence was introduced to show that two or more members of the BTR gang had engaged in any of the enumerated offenses in section 186.22 within three years prior to the current offense. The incident in November of 1988 did not involve purposeful gang activity on the part of defendant who had merely been standing on the corner and did nothing to provoke the drive-by shooting apparently done by another gang. The lack of evidence of gang activity also prevented a finding that the gang enhancement allegation was true.id: 9698
Instructions erroneously could have permitted a conviction of assault with intent to commit murder when only implied malice was shown.The trial court instructed the jury defendant was not guilty of assault with intent to commit murder unless he had the specific intent to murder the victim. Previous instructions defined murder as requiring express or implied malice. The instructions were erroneous because they could have permitted the jury to convict defendant of assault with intent to commit murder when only implied malice was shown. However, such an interpretation of the instructions was not obvious and closing arguments by counsel stressed the need to find intent to kill. Moreover, there was no evidence that defendant shot at the officers with any intent other than the intent to kill and avoid capture. The error was therefore harmless.id: 9702
Updated 3/7/2024The trial court had no duty to instruct sua sponte that the prosecution must prove GBI as an element of mayhem. Defendant was convicted of mayhem. The trial court did not err in failing to instruct sua sponte that infliction of great bodily injury is a required element to prove mayhem, and that like the disfigurement theory of mayhem, permanent injury is required to prove mayhem under the “slit of the lip” theory.id: 26287
Updated 3/6/2024The victim’s scarring from the stabbing attack was enough to support the mayhem conviction.Defendant argued the evidence was insufficient to support his mayhem conviction because it did not show the victim suffered permanent disfigurement or a disability that was more than slight or temporary. However, the victim’s scarring from the stabbing attack was sufficient to support the mayhem conviction.id: 26619
Updated 2/4/2024The superior court erred in denying the motion to reinstate the complaint since reasonable people would know that mayhem and assault by prisoners would be a natural and probable consequence of a prison riot. Defendants were charged with mayhem and assault by a state prisoner in connection with a riot at Pelican Bay State Prison where correction officers were seriously injured. The magistrate dismissed the complaint at the preliminary hearing, and the trial court denied the prosecution’s motion to reinstate the complaint. However, the court erred in denying that motion since there was sufficient cause to believe that defendants participated in the riot, and a reasonable person in their position would know that aggravated assault and mayhem were the natural and probable consequences of the riot.id: 27273
Corpus delicti for battery was established where the victim was found in his bedroom, upset and with injuries to his face.The minor argued there was insufficient evidence to establish the corpus delicti of the battery offense independent of her statements to the responding police officer. However, the evidence showed the victim (the minor’s boyfriend) was inside his bedroom. He was upset and had injuries on his face. The evidence permitted a reasonable inference that the minor had committed a battery against him.id: 25712
Evidence of permanent disfigurement to the victim’s lip supported the mayhem conviction.Defendant viciously bit the victim’s lip (and eye). Whether the lip was split or punctured was irrelevant as there was permanent disfigurement. The evidence was sufficient to support the mayhem conviction.id: 25555
Defendant committed a battery by colliding with the victim’s car even though there was no direct contact with the victim. Defendant argued there was insufficient evidence to support his spousal battery conviction because there was no evidence of a “touching.” Defendant intentionally drove his car into the victim’s, causing her to lose control and almost crash. Acknowledging that an indirect touching may establish a battery, he claimed this conduct did not amount to an indirect touching. However, the battery was established where one car struck the other even though defendant didn’t make direct contact with the victim.id: 24428
People v. Chiu, which negates an aider and abettor’s liability under the natural and probable consequences doctrine for first degree murder does not apply to a torture charge. Defendant was convicted of torture under the natural and probable consequences theory of aiding and abetting. He argued that following People v. Chiu (2015) 59 Cal. 4th 155, that theory was improper because torture is focused on the mind of the perpetrator rather than on the pain inflicted on the victim. However, Chiu is limited to an aider and abettor’s liability on a natural and probable consequences theory for first degree murder.id: 24880
Starving the children as a form of discipline was sufficient to support the torture conviction. Defendant argued the evidence was insufficient to support the torture conviction because there was no showing of an intent to inflict severe pain. However, the victims were emaciated to the point that they were close to death. There was evidence showing defendants intended to inflict cruel and extreme pain on the victims, and did so to punish the children. This was sufficient to support the torture conviction.id: 24881
Battery with serious bodily injury is not a lesser included offense of mayhem. Battery with serious bodily injury is not a lesser included offense of mayhem. Consequently, defendant was properly convicted of both offenses.id: 24619
The minor committed a battery against his teacher by knocking the walkie-talkie out of her hand even though he didn’t make contact with her. Evidence supported the finding that the minor committed a battery against the teacher (within the meaning of Penal Code sections 242 and 243.6) when he knocked a walkie-talkie out of her hand. Having just hit another teacher the minor committed the battery by striking the object the teacher was holding. id: 24259
Defendant could not properly be convicted of aggravated mayhem and mayhem based on a single incident so the conviction for the lesser included offense was reversed.Defendant was convicted of aggravated mayhem in violation of Penal Code section 205 and mayhem under section 203 based on the single act of pouring scalding hot water over her husband’s head causing serious burns and scarring. However, section 203 is a necessarily included offense of section 205 so a conviction of that offense was improper. id: 23904
A juvenile hall is “local detention facility” within the meaning of the “battery by gassing” statute.A minor argued there was insufficient evidence to support his conviction for “battery by gassing” because the juvenile hall where he was confined did not qualify as a “local detention facility” within the meaning of Penal Code section 243.9. However, the phrase “any local detention facility” as used in section 243.9 includes juvenile halls. id: 23565
A cut under the victim’s eye requiring stitches and leaving a scar along with swelling and blood in the eye amounted to serious bodily injury for section 243(d) and supported the GBI allegation.Defendant punched the victim in the face which caused a cut under the victim’s eye requiring eight stitches (leaving a scar), swelling and bruising to his face, and bleeding in his eye. The evidence was sufficient to establish serious bodily injury for the battery conviction under Penal Code section 243, subd.(d), and great bodily injury under section 12022.7.id: 23493
Smashing the car window and dragging the victim to the ground were part of a single incident and evidence supported the conviction for assault by means likely to produce GBI.Defendant argued the evidence was insufficient to support the conviction of assault by means of force likely to cause great bodily injury, prosecuted on and aiding and abetting theory, because there were two events - smashing the car window, and pulling the victim out of the car and slamming her to the ground. Defendant claims the prosecution proceeded on the basis of the first event only, and failed to elect its theory. However, this was a single incident involving an attack on the victim after defendants broke into her car. And the jury was entitled to find the force used created a likelihood of great bodily injury even absent evidence of an injury.id: 23695
Evidence supported the aggravated mayhem conviction on an aiding and abetting theory where the shooter acted after his request for money was denied and he aimed at the victim’s head.While defendant was driving, a passenger leaned out of the car and sprayed two victims with bullets. Defendant was convicted of one count of murder and another count of attempted murder as to the surviving victim. The evidence also supported the aggravated mayhem conviction as to the surviving victim. While the shooting might have been a sudden and indiscriminate attack prompted by frustration, it might also have included an intent to maim as it occurred after the shooter discussed his actions after being denied his request for money but before the shooting. The evidence also showed defendant may have fired at a specific body part - the victim’s head.id: 23419
Motive instruction did not reduce the prosecutor’s burden of proof but it did cause confusion and the court recommended that it be modified to exclude torture. Defendant argued the motive instruction, stating the prosecution was not required to prove defendant had a motive to commit any charged crime reduced the burden of proof because it conflicted with the torture instruction stating the jury had to find defendant intended to cause cruel or extreme pain for the purpose of revenge, persuasion or any sadistic purpose. While the motive instruction did not reduce the prosecution’s burden of proof, there is a potential for confusion, and the court suggested the motive instruction (CALCRIM No. 370) be modified to expressly exclude torture.id: 22629
For purposes of aggravated mayhem, a specific intent to maim a body part can be inferred from the repeated systemic abuse to that body part over time.Defendant argued the evidence was insufficient to support his three aggravated mayhem convictions because it showed he intended only to “attack indiscriminately” rather than maim the victim. However, a defendant’s specific intent to maim a body part can be inferred from the repeated systemic abuse of that body part over time.id: 22628
The prosecution was not required to show the victim’s injury required medical treatment in order to prove defendant committed battery causing serious bodily injury.Defendant argued the evidence did not support his conviction for battery resulting in serious bodily injury under Penal Code section 243, subd.(d) because there was no evidence that the injury required medical treatment. However, loss of consciousness that constitutes a serious impairment of physical condition is a “serious bodily injury” without any showing that the injury required medical treatment.id: 22665
Evidence supported the mayhem and torture convictions based on defendant’s repeated beatings of his son with a metal tipped hose and placing a burning hot knife on his skin. vidence supported defendant’s aggravated mayhem and torture convictions for his actions against his 12 year-old son. Any reasonable person would know that repeatedly striking a person’s body with the metal fitting of a hose and placing a burning hot knife against the person’s skin would likely cause permanent disfigurement for purposes of mayhem. Moreover, the repetitive beatings showed an intent to cause severe pain for purposes of torture.id: 21827
Evidence supported the convictions for assault with force likely to produce great bodily injury even though the victim’s actual injuries did no turn out to be severe.Evidence supported the conviction for assault with force likely to produce great bodily injury even though the officers testified to the victim’s “simple injuries”. Although the injuries did not turn out to be severe, the beating left the victim unconscious and the record showed defendants used force “likely” to produce great bodily injury. id: 21608
Evidence supported the assault on a child causing death conviction where defendant intentionally struck his young son several times in a manner that would lead a reasonable person to realize great bodily injury was likely.Defendant was convicted of assault on a child causing death under Penal Code section 273ab. The Court of Appeal reversed the conviction finding insufficient evidence to prove the mens rea for the offense, because it failed to show defendant had actual knowledge that he was wrestling too hard with his son. However, the Court of Appeal misapplied the mens rea standard for section 273ab. And substantial evidence showed defendant knew he was striking his young son with his fist, forearm, knee and elbow, and that he used an amount of force a reasonable person would realize was likely to result in great bodily injury. id: 21559
The trial court did not err by instructing that motive is not an element of torture.Defendant argued the requirement that great bodily injury be inflicted for a certain “purpose” creates a motive element for torture and it was there error to instruct with CALJIC No. 2.51. However, motive is not an element of torture and the trial court did not err in instructing with CALJIC 2.51.id: 20771
Intent to cause severe pain for torture was established by a course of conduct where defendant intentionally struck the victim in areas of her body where he had previously injured her. Defendant argued the evidence was insufficient to support his conviction for torture under Penal Code section 206 because the acts were not sufficiently brutal to show the requisite intent. Contrary to defendant’s claim, intent to cause cruel or extreme pain can be shown by a course of conduct rather than a single act. For that reason, the trial court also did not err in failing to give a unanimity instruction at trial.id: 20770
Assault by means of force likely to produce great bodily injury is not a lesser included offense of torture. The trial court did not have a duty to instruct on assault by means of force likely to produce great bodily injury as a lesser included offense of torture because it is possible to commit the latter by means of force that is not likely to produce great bodily injury, but nonetheless ends up doing so.id: 20769
Broken tooth constituted serious bodily injury for purposes of defendant’s conviction for battery involving serious bodily injury.Evidence of the victim’s broken tooth was sufficient evidence of serious bodily injury to support defendant’s conviction for battery involving serious injury under Penal Code section 343, subd.(f)(4).id: 20658
The trial court did not err in instructing with the mayhem instruction that disfiguring injury may be permanent even if it can be repaired by medical procedures. Defendant was convicted of aggravated mayhem under Penal Code section 205. He argued the trial court erred in instructing the jury, pursuant to CALCRIM No. 800 that a disfiguring injury may be permanent even if it can be repaired by medical procedures. Contrary to defendant’s claim, the instruction did not reduce the prosecution’s burden of proof on the element of permanence of the disability or disfigurement. id: 20614
A defendant may have the present ability to commit assault even if his conduct did not immediately precede a battery.Defendant argued that he lacked the present ability to commit assault because his conduct did not immediately precede a battery. However, when a defendant equips and positions himself to carry out a battery, he has the “present ability” required by Penal Code section 240 if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury.id: 20507
Evidence that defendant repeatedly slashed the victim's face while holding him down supported the aggravated mayhem conviction.Defendant argued there was insufficient evidence of specific intent to support the aggravated mayhem conviction. However, the victim's testimony that defendant repeatedly slashed his face while holding him down provided substantial evidence supporting the aggravated mayhem conviction.id: 20254
Criminal negligence is the required mens rea for felony child abuse.Criminal negligence is the appropriate mens rea standard for felony child abuse involving the infliction of harm under Penal Code section 273a,subd.(a) The Court of Appeal erred by concluding a defendant must purposefully place the child in a hazardous situation, while possessing a subjective awareness of that risk.id: 16743
Standard CALJIC instruction on "malice" was appropriate for the charge of discharging a firearm at an inhabited dwelling.Defendant was convicted of discharging a firearm at an inhabited dwelling under Penal Code section 246. He argued the court erred in failing to properly define "malice" as that term is used in section 246. According to defendant, the type of malice to which section 246 refers requires a demonstration that the act was without lawful justification, excuse or mitigating circumstance. However, the court did not err in providing the standard CALJIC instruction on malice.id: 16946
A conviction of abuse of a dependent adult under section 368 does not require proof that the victim was incapable of carrying out normal activities.Defendant was convicted of the abuse of a dependent adult. He argued the victim, the 60 year old mother of his girlfriend who had suffered a stroke resulting in partial paralysis to her right side and impaired mental abilities was not a "dependent adult." Penal Code section 368 victims include people who have physical or mental problems which "restrict" their ability to function normally. The word "restrict" is not synonymous with "preclude." Evidence supported the conviction.id: 20040
Defendants were properly convicted under street gang provisions and the prior predicate acts establishing a pattern of gang activity need not be gang related.Defendants were properly convicted under the Street Terrorism Enforcement and Prevention Act (Penal Code section 186.20), set seq.). An officer testifying as an expert on gangs concluded the Family Crip gang was a criminal street gang in that it was an ongoing organization with a common name or symbol that had as one of its primary activities the commission of one or more criminal acts enumerated in section 186.22, subdivision (e). Moreover, the gang's members engaged in a pattern of gang activity. Contrary to defendant's claim the crimes that comprise the statutorily required pattern of criminal gang activity need not be gang related. The predicate crimes were established where defendants had been convicted of shooting at an inhabited dwelling and assault with a deadly weapon.id: 9693
Spousal abuse statute does not violate equal protection in that it does not apply to same-sex cohabitants.
Defendant argued that Penal Code section 273.5 which criminalizes abuse of a spouse or cohabitant of the opposite sex, violates the equal protection clause because it does not apply to abuse of a cohabitant of the same sex. However, the mere omission to deal with domestic violence in same sex relationships cannot be seen as rendering section 273.5 so irrational or invidiously discriminatory as to warrant judicial interference, and the statute is not unconstitutional.id: 9535
Defendant's testimony that the victim was his "girl" and his "lady" showed a dating relationship for purposes of battery against a significant other. Defendant testified that the victim was his "lady friend" and his "girl" and said he communicated with her every day. This was sufficient evidence that they had a dating relationship to support his conviction for battery against a significant other under Penal Code section 243, subd.(e)(I).id: 19895
Evidence that the officer had the victim touch him constituted assault by a public officer. Defendant argued the evidence did not support his conviction of assault by a public officer under Penal Code section 149 because the victim touched him, at his direction, and he did not touch her. However, defendant's act under color of authority - of compelling an offensive touching with the victim's hand - constituted a violation of section 149.id: 19520
Defendant's severe disfigurement of the victim's face supported the torture conviction.Defendant argued the evidence did not support his torture conviction since his intent was only to disfigure, rather than to cause cruel or extreme pain and suffering. However, given the severity of the deep cuts to the victim's face, the scarring, the attack's focus on her face, and the defendant's prior threatening statements, there was sufficient evidence that
defendant intended to cause cruel or extreme pain and suffering. Moreover, the evidence of defendant's intent to disfigure the victim satisfied the sadistic purpose element.id: 19294
Evidence supported the torture conviction notwithstanding defendant's claim of a reasonable inference showing the acts were spontaneous rather than calculated.Defendant argued the evidence was insufficient to support the torture conviction because his brutal and repeated assaults on the victim were spontaneous rather than calculated, and thus, he
did not act with the specific intent to cause the victim to experience cruel or extreme pain and suffering. Contrary to defendant's claim, evidence giving rise to an inference that he acted spontaneously did not require reversal on appeal. Moreover, an inference that defendant acted in anger would not dispel the intent required for torture. Finally, the evidence supported the inference that defendant inflicted pain in revenge because the victim reneged on her agreement to submit to rape.id: 19242
Defendant's violence in striking the victim over the head with a golf club, subsequent taunting and threats, and callous indifference to the victim's medical needs supported the torture conviction.Defendant's conviction of torture under Penal Code section 206 was supported by the evidence. Defendant struck the victim's head with a golf club using sufficient force to crack the victim's skull at its thickest point. He then taunted the victim, prodded him with the club and uttered threats and profanities. The evidence showed defendant intended to inflict cruel or extreme pain on the victim. Moreover, defendant showed callous indifference to the victim's medical needs as he ate breakfast while the victim phased in and out of consciousness and refused to allow others to take the victim to the hospital.id: 19117
Neither battery nor assault are lesser included offenses of elder abuse so double jeopardy did not preclude retrial on the aggravated assault charges following the acquittal for elder abuse.Defendant was acquitted of elder abuse under Penal Code section
368(b)(1). The verdicts also purported to acquit him of lesser offenses to that count including simple battery and simple assault. The jury was unable to reach a verdict on a separate charge of aggravated battery and assault. On retrial defendant was convicted of these offenses. Defendant argued the acquittals for the elder abuse and the included offenses of battery and assault barred retrial because they were elements of the remaining charges. However, neither assault nor battery are included offenses of elder abuse which may be committed by inflicting mental suffering. Double jeopardy principles did not bar retrial for the assault and battery and the acquittals did not have any preclusive effect on the issues on retrial.id: 19096
Retrial on deadlocked counts of aggravated battery and assault following acquittal of elder abuse was not prohibited by double jeopardy or collateral estoppel principles.The jury acquitted defendant of the charged offense of elder abuse. It also returned verdicts purposing to acquit him of lesser offenses of that count - simple battery and simple assault. The jury was unable to reach a verdict on the remaining counts of aggravated battery and assault. However, neither battery nor assault are lesser offenses included in elder abuse which can be committed by inflicting mental suffering. Because the case involves a continuing rather than a successive prosecution, neither constitutional nor statutory protections against double jeopardy prevent retrial. Moreover, defendant did not show the acquittals necessarily resolved the ultimate issues for collateral estoppel purposes.id: 18963
Deliberate attack on the victim's face and hands supported the convictions for aggravated mayhem and torture.Defendant argued there was insufficient evidence to support his convictions of aggravated mayhem and torture since the record did not show he intended to maim, disfigure or inflict extreme and cruel pain on the victim. However, defendant used deliberate uppercut motions to slash the victim's face, showing the attack was to the face rather than an indiscriminate attack. Defendant also testified he intended to permanently disfigure the victim, and the deep cuts to the face and hands (which ended his construction career) supported the aggravated mayhem conviction.id: 18884
The trial court did not err by refusing to instruct that the honest but unreasonable belief in the need for self-defense negated the malice necessary for aggravated mayhem. The trial court did not err by refusing to instruct on imperfect self-defense as to aggravated mayhem or the lesser included offense of simple mayhem. However, because the malice element of mayhem is different from the malice element of murder, the imperfect self-defense theory may not apply to mayhem. Assuming it did apply, the failure to so instruct was harmless in light of the other instructions given and the jury's findings.id: 18885
Aggravated assault is not a lesser included offense of aggravated mayhem.Assault with a deadly weapon or by means of force likely to produce great bodily injury is not a necessarily included offense of aggravated mayhem under the elements or accusatory pleading test. Therefore, the convictions for both offenses were proper.id: 18887
The charged offenses of attempted murder, robbery and mayhem were not necessarily included in the street terrorism offense.Defendant argued the attempted murder, robbery, vehicle theft, receiving stolen property, and mayhem (as described in the first five counts) were necessarily included in the street terrorism offense in count 7, and conviction of the counts must be stricken. However, the argument failed under the pleadings test as the street terrorism charge as alleged in the information did not allege a particular felony and did not mention any of the other charged offenses.id: 18775
Section 186.22, subd.(a) does not improperly criminalize mere membership in a gang.Defendant argued Penal Code section 186.22, subd.(a), criminalizes mere membership in a gang in violation of the First Amendment. Courts have rejected the constitutional challenge. In any event, the evidence showed there was no doubt defendant was an active participant in a criminal street gang.id: 18658
Section 186.22, subd.(a) applies to direct perpetrators as well as aiders and abettors of gang-related crimes.Defendant argued his conviction for active participation in a criminal street gang must be reversed because Penal Code section 186.22, subd.(a) applies solely to aiders and abettors, and not to direct perpetrators. However, the plain language of the statute extends liability to direct perpetrators of gang-related crimes.id: 18660
The trial court did not err by refusing to modify the spousal battery instructions to specify the contact must be "unlawful."Defendant argued the trial court erred by refusing to modify the standard battery instruction (CALJIC 9.35) to specify the application of force must have been "unlawful" as well as willful. He claimed the evidence was sufficient to raise a reasonable doubt whether he acted in self-defense. However, in light of the other instructions, it was unlikely the failure to add "unlawful" to the instruction misled the jury into believing the spousal battery instruction did not apply.id: 18309
Defendant failed to show that Penal Code section 206 was preempted by the ratification of the Convention Against Torture.Defendant challenged his torture conviction by claiming the United States ratification of the Convention Against Torture has preempted Penal Code section 206. However, the Convention applies to torture committed under the color of law and outside the United States. Defendant failed to show that section 206 has been preempted by a federal law or any international instrument.id: 18314
Assault by means of force is not a necessarily included offense of mayhem.Assault by means of force is not a necessarily included offense of mayhem. Therefore, both convictions were proper.id: 18161
Evidence that defendant intended to shoot an NSO gang member supported his conviction of aggravated mayhem.Defendant argued the evidence was insufficient to support his conviction of aggravated mayhem. He claimed his use of a powerful firearm and modified bullets was merely evidence of an indiscriminate attack or a general intent to kill, and there was no evidence of a specific intent to maim Barera. However, while defendant may not have known Barera's identity when shooting at him, the evidence showed he intended to shoot an NSO gang member. The evidence supported the conviction.id: 18079
Battery is not a lesser included offense of torture.Battery is not a lesser included offense of torture under either the elements test or the accusatory pleading test and the trial court was not required to so instruct.id: 18001
Defendant may be convicted of torture as an aider and abettor even where he did not personally inflict great bodily injury.Defendant argued he could not be convicted of torture as an aider and abettor unless he personally inflicted great bodily injury within the meaning of Penal Code section 12022.7. However, section 206 does not require defendant to have personally inflicted the torture in the same way that section 12022.7 requires there be personal infliction of injury for the statute to operate. There is no reason why one who facilitates torture should be less culpable than the actual torturers.id: 18002
Penal Code section 186.22 applies where the only alleged gang activity is felony vandalism.The California Street Terrorism and Enforcement Act (Penal Code section 186.20 et seq.) applies even where the only alleged gang activity is felony vandalism. Application of section 186.22 to felony vandals does not violate substantive due process. There is nothing unreasonable, arbitrary or capricious in applying the act to those who deface buildings since it can be otherwise applied to those who smash windows.id: 18003
The Flannel defense does not apply to mayhem. Defendant argued the trial court should have instructed the jury that it was a partial defense to the mayhem charge if defendant acted under a genuine but unreasonable belief in the need to defend himself. However, a belief in the necessity for self-defense does not negate an intent to vex, injure or annoy. The Flannel defense has no application to a charge of mayhem.id: 17978
Defendant and victim cohabitated for purposes of section 273.5 where they lived together in his car when the victim had no other place to stay.Defendant was convicted of corporal injury on a cohabitant under Penal Code section 273.5, subd.(a). He had been dating the victim for five months and they were "living together" in his car at the time of the charged offenses. The victim was pregnant with defendant's child and she stayed with him when she was homeless and had no other place to stay. There was sufficient evidence of cohabitation to support the conviction.id: 17847
Evidence supported the torture conviction where defendant severely bit the victim's ear after choking her into unconsciousness.Defendant argued the evidence was insufficient to support his conviction of torture under Penal Code section 206 because of the lack of evidence of an intent to cause cruel and extreme pain. However, defendant selected a woman unknown to him, forced entry into her apartment, attacked her viciously when she resisted, twice choked her into unconsciousness and intentionally bit nearly through her ear. The bizarre conduct was not necessitated by an attempt to rob the victim or a belief in self-defense. That he did not rape or further humiliate the victim did not matter. The evidence supported the inference that defendant did not merely engage in an assault, but had a separate sadistic purpose to inflict great bodily injury and pain when he bit her ear.id: 17809
Trial court erred in finding a peace officer convicted of simple battery was eligible for relief from the 10 year firearm prohibition.Defendant, a San Bernardino County deputy sheriff, was convicted of misdemeanor battery under Penal Code section 242, in an off-duty incident. At sentencing, he sought relief from the 10 year firearm prohibition described in Penal Code section 12021, subd.(c)(1). The prosecution appealed the court's ruling that defendant was eligible for relief. Section 12021(c)(2) allows relief from the prohibition for defendants convicted of domestic violence under sections 273.5 and 273.6, and stalking under section 646.9. Defendant argued relief should be available since section 242 is a lesser included offense of section 273. However, the Legislature declined to add that provision to the list of exceptions. Moreover, allowing relief to the three enumerated offenses is not an arbitrary classification in violation of equal protection principles since the Legislature could conclude peace officers who engage in criminal behavior toward strangers may be more culpable than officers who commit crimes in a dysfunctional domestic relationship. Finally, defendant could not challenge the fact that the same conduct can lead to charges under section 273.5 or section 242, because in defendant's case the conviction did not arise from a battery on a domestic partner.id: 17764
Evidence supported mayhem conviction where an unlicenced doctor botched a breast augmentation surgery.Defendant was a medical doctor with a restricted license which prevented him from performing surgery. He was convicted of mayhem following a botched surgery. He later denied the victim's request to fix the problem, and she had a plastic surgeon remove the implants causing scarring and removal of healthy tissue. Contrary to defendant's claim, the victim's consent to the surgery did not vitiate the charge of mayhem since defendant was unlicenced at the time and never informed the victim of this fact. Moreover, the unlicenced practice of medicine can satisfy the wrongful act element of mayhem in a case such as this.id: 17618
Evidence showed defendant's intent to maim for aggravated mayhem purposes where he attacked the victim by striking him in the face with a knife-sharpener.Defendant was convicted of aggravated mayhem. He argued there was insufficient evidence to show he intended to maim the victim. However, there were multiple factors that, when taken together, showed defendant's intent to maim the victim. The attack involved a steel knife-sharpener with a throwing motion used to generate more force. Next, the object was aimed at the victim's head which is a vulnerable part of his body. Defendant also planned the attack as it followed a show of animosity between the groups followed by defendant walking to the back of the restaurant finding the knife-sharpener, leaving the restaurant, and confronting the victim. After announcing his association with "KP" defendant attacked the victim. No more was required to show the intent to maim.id: 17573
25 years-to-life sentence for child homicide did not violate due process by providing the same term as first degree murder without requiring proof of malice.Defendant was convicted of assaulting a child under the age of eight by means of force likely to result in great bodily injury resulting in death. (Penal Code section 273ab.) He argued the statute violates due process by requiring a 25 years-to-life penalty for a general intent assault - the same as for first degree murder - without requiring proof of malice. However, it is immaterial that the punishment for section 273ab is the same as first degree murder. The Legislature exercised its prerogative in selecting the range of punishment, and the law does not preclude the same punishment for different crimes.id: 17359
Assault on a child resulting in death provision does not deny due process even though it imposes a 25 years-to-life term without requiring proof of malice aforethought.Defendant was convicted of the assault of a child resulting in death pursuant to Penal Code section 273ab. He argued the provision violates due process as it seeks to impose a 25 years-to-life term on an accused without having to prove malice aforethought. Contrary to defendant's claim, legislative motive is not the determining factor for court scrutiny of a due process attack. The Legislature sought to criminalize an attack on a child with the general intent to commit an aggravated assault which resulted in death. The general presumption supporting legislative action prevailed in this case.id: 17023
The court did not err in failing to instruct on imperfect self-defense in relation to the charge of discharging a firearm at an inhabited dwelling.Defendant argued the trial court erred in failing to instruct the jury that the self-defense instructions read in relation to the murder charge also applied to the charge of discharging a firearm at an inhabited dwelling under Penal Code section 246. However, any error in failing to so instruct was harmless where the jury otherwise rejected the claim of self-defense, selecting voluntary manslaughter based on imperfect self-defense instead. Moreover, there was no duty to instruct on imperfect self-defense with respect to the section 246 charge because there was no authority suggesting the concept applied in a prosecution charging a violation of section 246.id: 16947
Evidence supported torture conviction even though defendant may have been suicidal before setting his wife on fire.Evidence showed defendant doused his wife with gasoline, lit her on fire and watched her burn. He argued the evidence showed she was burned accidentally as a result of his botched suicide attempt. He claimed the evidence was insufficient to prove he had the intent to cause cruel and extreme pain for purposes of torture under Penal Code section 206. However, both the circumstances and defendant's own statements establish the requisite intent to cause his wife cruel or extreme pain. The jury could have found defendant was suicidal but then changed his mind and tortured his wife rather than kill himself.id: 16822
Battery on a custodial officer statute was not impliedly repealed by an amendment to a similar statute.Defendant was convicted of battery on a custodial officer under Penal Code section 243.1. He argued that provision was impliedly repealed by an amendment to section 243, which provides that battery upon an officer is a misdemeanor, unless there is an injury, in which case it can be treated as a misdemeanor or a felony. However, the legislative history materials show the Legislature intended to give prosecutors multiple options for a battery on a custodial officer. Moreover, since the Legislature intended that section 243.1 remain an option, it was not subject to the "specific statute prevails over the general statute" rule. id: 16751
Mayhem was established where defendant fired a gun at the victim at close range causing paralysis.Defendant argued that shooting at an individual in a manner in which the shooter does not realize could cause paralysis cannot support a mayhem conviction. However, defendant intentionally opened fire directly at the victim's truck knowing the victim was seated there. Firing a gun at close range, which results in the victim being paralyzed is sufficient to constitute mayhem. Defendant's apprehension of the precise effect of his shots, i.e., his specific awareness that the victim would be paralyzed, is irrelevant.id: 16524
A conviction of felony child abuse based on direct infliction of unjustifiable physical pain and mental suffering requires a general criminal intent.When the conduct at issue involves the direct infliction of unjustifiable physical pain or mental suffering on a child, criminal negligence is not an element of the offense. Rather, the defendant must have a mens rea of general criminal intent to commit the proscribed act. In addition, the trier of fact must determine whether the infliction of the unjustifiable physical pain or mental suffering on a child was under circumstances or conditions likely to produce great bodily harm or death. If so, the crime is punishable as a felony. If not, it is punishable solely as a misdemeanor.id: 15318
A reasonable person would know that rapid violent shaking of a child or repeated blows to the head would produce great bodily injury.Defendant was convicted of assaulting a child by means likely to cause great bodily injury resulting in death. (Penal Code section 273ab.) He argued there was no evidence presented at trial to establish a reasonable person would be likely to know "shaking or hitting a child with rapid, moderate force" would produce great bodily injury. However, the severity of the victim's injuries belied defendant's claim where the injuries were either caused by rapid, violent shaking or by rapid, repeated blows with one or two "tremendous" ones leaving at least 24 bruises on the back of his head.id: 15319
Defendant, who cohabitated with the child's mother, had custody and care of the child for purposes of the assault of a child resulting in death statute.Defendant was convicted of assault resulting in the death of a child under the age of eight in violation of Penal Code section 273ab. Defendant cohabitated with the victim's mother. He argued he did not fall within the definition of the statute because he did not have custody and care of the child. However, defendant assumed a parent-like role, and had a duty as a caretaker of the child.id: 15324
Evidence supported finding of intent to cause cruel or extreme pain for torture where the victim was disrobed, confined in the car trunk, bound, gagged, blindfolded and subjected to multiple attacks over a prolonged period.Defendant was convicted of torture under Penal Code section 206. He argued the evidence was insufficient to support a finding he intended to cause cruel or extreme pain and suffering. Defendant's argument wrongfully places emphasis on the injuries or pain actually suffered by the victim. Instead, emphasis must be placed on the perpetrator. Here, the circumstances of the offense, including the forced disrobing, the confinement in the trunk of a car, the isolated location, the multiple attacks, the binding of the hands and feet, the blindfolding, and the duration of the ordeal, establish the intent to cause severe pain and suffering. Other circumstantial evidence sheds light on the perpetrator's intent including photographs and references to violence and cruelty.id: 15326
Evidence supported torture conviction where defendant attacked the victim with facial blows by a hammer while the victim was sleeping next to her daughter.Defendant argued the evidence was insufficient to support his conviction of torture under Penal Code section 206. However, it was reasonable to infer when defendant twice aimed and struck the ball peen hammer at the victim's face, causing multiple injuries, that he intended to cause her to suffer extreme or cruel pain. It was also reasonable to infer that by attacking the victim with a hammer at night when she was asleep in bed next to her three year-old daughter, that he intended her to suffer cruel physical pain, as well as extreme anguish and terror.id: 15327
Spousal abuse only requires a general intent to use force against the spouse.Defendant argued the trial court erred in failing to instruct sua sponte that the crime of spousal abuse requires specific intent. He claimed that Penal Code section 273.5 is a specific intent crime because it requires the general intent to use force against the spouse and a further specific intent that the force will result in a traumatic injury. However, a defendant may be found guilty of section 273.5, subd. (a), even if he did not specifically intend to cause the traumatic injury.id: 15330
Trial court properly instructed that spousal battery is a general intent crime.Defendant argued spousal injury under Penal Code section 273.5, subdivision (a) is a specific intent crime because it requires both the general intent to use force against the spouse, and a further specific intent that the force will result in a traumatic condition. However, spousal injury under section 273.5, subdivision (a) requires only the mens rea of intending to do the assaultive act.id: 15332
Willful, deliberate and premeditated intent to inflict prolonged pain is not an element of the crime of torture under Penal Code section 206.Defendant argued the trial court erred by failing to instruct that the crime of torture requires the willful, deliberate and premeditated intent to inflict prolonged pain. However, Penal Code section 206 does not require that the pain inflicted be prolonged. Moreover, the intent to inflict pain need not be willful, deliberate, and premeditated.id: 15333
Terms in torture statute such "as any sadistic purpose" and "cruel or extreme pain" are not unconstitutionally vague.Defendant argued the torture statute, Penal Code section 206, was unconstitutionally vague because of the terms cruel or extreme pain and suffering, any sadistic purpose, and torture. However, the meaning of those terms is commonly known and the statute was not unconstitutionally vague.id: 15271
Child abuse resulting in death statute is not vague or overbroad, and is not an unconstitutional strict liability offense.Defendant argued that Penal Code section 273ab - assault on a child with force likely to produce great bodily injury resulting in death - was unconstitutionally vague and overbroad because it did not define with certainty the prohibited conduct. However, the statute gives explicit notice to individuals having care or custody of a child under eight years of age that they fall within the purview of the statute. Neither the phrase "care or custody" nor "great bodily injury" has a special legal meaning. Moreover, section 273ab is not an unconstitutional strict liability statute in which a murder sentence is imposed for an offense without a mental state. A strict liability offense is one which dispenses with mens rea, a scienter or wrongful intent element. Section 273ab is a general intent crime.id: 15253
Defendant necessarily intended to strike the building with a bullet where the intended victim was inside the building behind a glass door.Defendant was convicted of discharging a firearm at an occupied building pursuant to Penal Code section 246. He argued the intent required by section 246 was the intent to strike the building and that such intent was not established. However, defendant intended to shoot an individual inside the building behind a glass door. The only way to shoot the victim was to strike the building by firing a shot through the glass door. Defendant necessarily intended to strike the building.id: 9692
Discharging a firearm from a vehicle and permitting another to do so are general intent crimes.Defendant argued the trial court erred in failing to instruct that both target offenses were specific intent crimes. However, the offenses, discharging a firearm from a motor vehicle (Penal Code section 12034, subdivision (d)) and permitting another to discharge a firearm from a vehicle (section 12034, subdivision (b)) are general intent crimes.id: 9694
Evidence supported a true finding on the Penal Code section 415, subdivision (3) count where the minor provoked a fight with an on-duty police officer.When an officer arrested the minor's uncle the minor challenged the officer to a fight. He was then arrested for provoking a fight within the meaning of Penal Code section 415, subdivision (3). Evidence supported the true finding on the count as the minor expressly challenged the officer to a fight, thereby posing a real threat of violence, as opposed to mere vulgar or insulting language. Moreover, the officer testified he felt personally threatened and believed the verbal assaults could turn into a physical assault.id: 9696
Evidence the wounds were caused by slashing was sufficient to support the finding of torture.Defendant argued the evidence was insufficient to support his conviction of torture under Penal Code section 206 because it was the victim's will to survive, not his design, that prolonged the ordeal. However, the victim's wounds were caused by slashing, a method consistent with an intent to inflict pain. Moreover, the victim testified defendant moved the knife slowly. There was sufficient evidence to support a finding of torture.id: 9697
Father may be convicted of battering the mother of his child even after his parental rights are terminated.A biological father may lawfully be convicted of battering the mother of his child pursuant to Penal Code section 273.5, even if his parental rights to that child had been terminated before commission of the offense.id: 9700
For child abuse resulting in death provision, prosecution need not prove a reasonable person would believe the force used would likely result in death.Defendant was convicted of child abuse resulting in death. Under Penal Code section 273 ab, he argued, the jury should have been instructed that in order to convict it had to find that a reasonable person would have believed the force he used would have resulted in the child's death. However, section 273 ab does not contain such an element.id: 9701
Mayhem conviction is warranted even though a permanent injury can be cosmetically alleviated.Defendant was convicted of mayhem and argued the court erred in instructing that permanence of the injury was not required. He claimed that evidence of medical alleviation may be used in a mayhem trial to prove an injury, permanent by its nature, may be corrected by medical procedures. However, evidence of medical alleviation may not be used by the defense to prove the injuries are not permanent.id: 9703
Other statutes do not cover the same conduct the new torture statute prohibits.Defendant shot the victim at close range as a means of inflicting enough pain upon the victim to gain the victim's cooperation and property. He was charged with torture under Penal Code section 206. Defendant argued that section 206 is prohibited because other statutes more specifically cover the same criminal acts. He specifically listed extortion with great bodily injury (sections 518, 12022.7), battery with serious bodily injury (section 243, subd. (d)), and robbery in an inhabited dwelling with great bodily injury (sections 215, 12022.7). However, none of the listed crimes cover the specific crime of torture.id: 9707
Ripping victim's clothes and shoving a hand down her throat constituted force likely to produce great bodily injury.Defendant was convicted of assault by means of force likely to produce great bodily injury (Penal Code section 245, subd. (a)(1)). He argued that evidence of force was insufficient to support the conviction. After engaging the victim, a stranger, in small talk, defendant grabbed her face pinching both sides of her mouth. He ripped her clothing. He then held her jaw tightly and while on top of her he shoved his whole hand down her throat so she would not scream. Evidence supported the finding of force likely to produce great bodily injury.id: 9709
Shooting victim in the neck at close range supported the jury's finding of intent to commit aggravated mayhem.Appellant who had never met the victim went to her house, shot the victim's father in the knee and then shot the victim in the neck at close range. The shooting was not a random attack but, rather, was directed and controlled. The jury could reasonably have inferred that appellant intended to kill the victim, and, if she did not die, to disable her permanently. The evidence therefore supported appellant's conviction of aggravated mayhem as defined in Penal Code section 205, which prohibits intentionally causing permanent disability or disfigurement to another.id: 9710
Shoving the victim into the car and grabbing her breasts established an intent to commit rape for purposes of assault with intent to commit rape.Defendant argued that despite evidence from which the jury could find he intended something sexual and without consent, the evidence fell short of showing he intended to accomplish an act of sexual intercourse necessary for a conviction of assault with intent to commit rape under Penal Code section 220. However, defendant grabbed the victim by her hair, pushed her into the driver's seat of the vehicle and shoved his hand underneath her sweater, touching both of her breasts. This conduct is consistent with an intent to commit rape and the evidence supported a conviction under section 220.id: 9711
The intent to inflict prolonged pain is not an element of torture.Defendant was convicted of one count of torture pursuant to Penal Code section 206. He argued the court erred in failing to instruct the jury that the pain inflicted must not only be extreme but also prolonged. However, the intent to inflict prolonged pain is not an element of torture.id: 9712
The trial court has no sua sponte duty to instruct on the doctrine of imperfect self-defense in relation to the crime of torture.Defendant was convicted of attempted murder, aggravated mayhem and torture. He argued the trial court improperly limited the doctrine of imperfect self-defense to the charges of attempted murder and aggravated mayhem. However, the law is unsettled as to the relationship of the doctrine of imperfect self-defense to the crime of torture and the court had no sua sponte duty to instruct on the issue.id: 9714
Trial court did not err in failing to instruct on imperfect self-defense to negate the malice required for a mayhem conviction.The trial court did not err in failing to instruct sua sponte that an honest but unreasonable belief in the need for self-defense negated the malice required for a mayhem conviction. Unlike the situation in <i>People v. Flannel</i> (1979) 25 Cal.3d 668, where the imperfect self-defense rule was developed to address the requirement of malice aforethought, mayhem involves a different requisite mental state and has no statutory history recognizing a malice aforethought element or the availability of a <i>Flannel</i> defense.id: 9715
A defendant who abuses a cohabitant cannot immunize himself from criminal liability merely by living part time with another person.Defendant was charged with inflicting corporal injury on a cohabitant under Penal Code section 273.5. For purposes of that section a defendant may cohabitate simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for significant periods. A defendant who physically abuses a cohabitant cannot immunize himself from criminal liability merely by living part time elsewhere with one or more other persons while continuing to reside the rest of the time with the first partner and maintaining a social relationship with that person.id: 9673
A kick in the groin and cuts on the hand constituted injuries for purposes of battery on a police officer provision.Defendant was convicted of battery on a police officer in violation of Penal Code section 243, subdivision (c). He argued the evidence was insufficient to show the officer sustained an injury within the meaning of the provision because no professional medical treatment was required or given. However, the officer was kicked in the groin and knocked to his knees, and the fingers and part of his hand were cut. He was sufficiently injured to satisfy the statute.id: 9675
Acts of abuse against a spouse or a cohabitant occurring over time may be charged as separate offenses.Defendant was charged with numerous violations of Penal Code section 273.5, subd. (a), corporal injury to spouse or cohabitant. He argued that section 273.5 is a continuing course of conduct offense and the prosecutor may charge only one count of spousal or cohabitant abuse for each victim. However, acts of abuse against a cohabitant or a spouse occurring over time may be charged as separate offenses.id: 9676
Acts of torture, committed for sadistic purposes do not require a finding of sexual abuse.Defendant was charged with torturing the victim in violation of Penal Code section 206. He argued the evidence was insufficient to show that he acted for persuasive or sadistic purposes. However, there was substantial evidence to support the trial court's finding that he inflicted pain for sadistic purposes. Contrary to defendant's claim there need not be evidence of sexual abuse in order to find that the defendant acted with sadistic purposes.id: 9677
Assault by a public officer under color of authority is not a necessarily included offense in sexual battery for purposes of the rule against multiple convictions.Sexual battery can be committed by individuals other than public officers and can be committed by public officers who are not acting under color of authority. Thus a person can commit a sexual battery without also necessarily violating Penal Code section 149.id: 9678
Assault is a general intent crime and does not require an intent to batter.Defendant was charged with assault with a deadly weapon. The court erred in instructing the jury that the requisite intent for ADW is the intent to commit battery. Assault is a general intent crime and does not require an intent to batter. However, the court went on to instruct that the intent to commit a battery can be presumed by an act inherently dangerous to others with a conscious disregard of human life and safety. This was an accurate statement of law and the court did not eliminate the intent element of assault by giving the presumption instruction.id: 9679
Attempted injury upon a cohabitant does not require a traumatic condition.Appellant argued that attempted injury upon a cohabitant (Penal Code sections 664/273.5, subdivision (a)) is not a crime. He acknowledged that one can commit the crime of attempted violation of section 273.5 without inflicting corporal injury, but claimed that both the consummated crime and the attempt require a resulting traumatic condition. However, attempted injury upon a cohabitant does not require a traumatic condition and is indeed a crime. Evidence supported the finding that defendant intended to cause a traumatic condition as he shoved his 8-1/2 months pregnant wife hard while cursing at her and swiping at her with his hand.id: 9680
Battered woman's testimony that defendant fathered her child was sufficient evidence of paternity under section 273.5.Defendant was convicted of inflicting corporal injury upon the mother of his child pursuant to Penal Code section 273.5. He argued the evidence was insufficient to show that he was the father of her child. However, section 273.5 does not require that parentage be established by resort to the Family Code presumptions. The victim's testimony constituted substantial evidence that defendant was the father of her children within the meaning of the provision.id: 9681
Battery on a peace officer is not a lesser included offense of assault on a peace officer coupled with a great bodily injury enhancement.Although the trial judge realized that battery is not usually a lesser included offense of assault, he erroneously reasoned that a battery was a lesser included offense of the assault charged in this case since it was coupled with a great bodily injury allegation. Moreover, nothing in the record indicated appellant or his counsel consented to the conviction in the lesser non-included offense, and thus, there was no waiver of notice on the battery.id: 9682
CALJIC 9.90 properly sets forth the elements of torture.Defendant argued CALJIC 9.90 does not properly set forth the elements of Penal Code section 206, the new torture provision. He claimed the elements of "intent" and "great bodily injury" should be defined in the same manner they are defined in section 12022.7. However, the terms used in section 206, and therefore in section 9.90, are of such common usage that they are presumed to be within the understanding of reasonable jurors.id: 9683
Carjacking is not unconstitutionally vague or overbroad and does not violate equal protection despite its relationship to the crime or robbery.Defendant argued the crime of carjacking pursuant to Penal Code section 215 is unconstitutionally overbroad, vague, and denies equal protection. It is not overbroad in that it targets thrill seekers as well as thieves since the danger to the victims is equally great. The provision is not vague in that an act may result in charges of both robbery and carjacking, or that single or multiple counts may be alleged if the driver is accompanied by passengers. Finally, section 215 does not violate equal protection in that similarly situated defendants are treated differently based upon the decision to charge robbery or carjacking. All similarly situated defendants chargeable with those offenses will face the same charging, convicting, and sentencing options.id: 9686
Cigarette burn on victim's breasts supported mayhem conviction.Evidence established that appellant placed a lit cigarette against the victim's bare breasts. Appellant argued this evidence did not support a mayhem conviction because mayhem is reserved for only the most disabling and disfiguring attacks. While the injury suffered by the victim may not have been as disfiguring as some of the more vicious mayhem cases, it quite clearly involved a serious permanent disfigurement within the meaning of the statute.id: 9688
Court did not err in denying defendant a physical exam of mayhem victim to determine whether the injuries suffered were permanent.Defendant argued the trial court erred in denying his expert an opportunity to conduct a physical exam of the victim. Defendant sought to show the injuries could be corrected through plastic surgery and therefore were not permanent. However, the possibility that the victim's disfigurement could be alleviated through plastic surgery was no bar to a finding of permanent injury. Because defendant had access to the victim's medical record and because an exam would not have revealed relevant evidence the trial court did not err in denying the request.id: 9689
Use of term "permit" in drive-by shooting statute did not render it unconstitutionally vague.Defendant was convicted of permitting the discharge of a firearm from a vehicle pursuant to Penal Code section 12034, subdivision (b). Contrary to defendant's claim, use of the term permit did not render the provision void for vagueness.id: 9529
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245