Filed 11/9/18 P. v. Candelaria CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed.

Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Gerardo Chris Candelaria of one count of aggravated mayhem (Pen. Code,[1] § 205). Candelaria was sentenced to an indeterminate term of seven years to life in prison.

Candelaria appeals contending the trial court erred in refusing to give a special (pinpoint) jury instruction regarding the mental state required for aggravated mayhem (a specific intent crime) as compared to simple mayhem (a general intent crime). We will find the trial court properly refused to give the special instruction since the subject was fully covered by other jury instructions. Even if the court erred, which it did not do, any error was harmless beyond a reasonable doubt. We will affirm the judgment.

STATEMENT OF FACTS

Candelaria does not challenge the admissibility or the sufficiency of the evidence to support his conviction. He simply challenges the failure to give a single pinpoint instruction. Accordingly, an extensive exposition of the facts of the crime is not warranted. The parties do not disagree on the facts. We will use the statement of facts from the respondent's brief as a summary to provide background for the discussion that follows.

A. Prosecution Evidence

On April 6, 2017, at around 5:00 a.m., Edwin Maharaj was in the holding cell at the San Diego Central Jail when he noticed a man using the phone inside the cell. The man was very close, almost standing over him. The man was crying as he tried to find "somebody to bail him out." Maharaj then observed appellant, who was also in the holding cell, push the man using the phone into the phone. Appellant made some indistinct comments, and his voice sounded "high and angry." The man who had used the phone did not engage appellant and sat down. Appellant still appeared irate and paced back and forth quickly. He appeared "almost like he was trying to find somebody to fight." Appellant then made comments to two younger black men who moved out of his way.

Appellant subsequently sat back down before making eye contact with Johnnie Johnson, another man in the holding cell. Johnson was looking at appellant because appellant was "pretty close" to him and being "stupid." Johnson described appellant as being "mean and ugly," based on "the growling, the fussing, the bullying, the stress, [and] the frowns" exhibited by appellant. Appellant asked Johnson what he was looking at and "do you want some of this?" Appellant also said "the 'N' word." Maharaj believed words were exchanged between appellant and Johnson in the form of "racial cussing back and forth," and appellant sounded angry whereas Johnson sounded relaxed. However, Johnson denied saying anything to appellant. In fact, Johnson described appellant as speaking to other people in the holding cell, but "[n]o one spoke to him, period."

Appellant then approached Johnson who stood up to try and keep appellant "from being all over" him. Appellant took a swing at Johnson who dodged it and struck back at appellant. They then grabbed each other, wrestled, and ended up on the ground.

At one point during the fight, appellant jammed his thumb in Johnson's eye, causing it to be "bloodshot for a while." Then, when appellant got behind him, Johnson felt appellant's arm around his neck. At another point in the fight, appellant was on top of Johnson when he bit Johnson's ear. Appellant had Johnson's ear in his mouth for "a long time" and at least two minutes. Johnson tried to stay still for fear his ear would fall off. Johnson held appellant close to him to try and prevent appellant from further biting his ear. In turn, Johnson bit appellant on "his chest a little bit." Johnson initially thought appellant would let go, but appellant did not let go until part of Johnson's ear "was off." Afterwards, appellant's mouth grazed Johnson's nose, causing an abrasion. Johnson had his thumb in appellant's mouth at around that time, though appellant only bit down on Johnson's thumb "for a second," causing another abrasion. After he bit off Johnson's ear, appellant tried "to do more damage," but Johnson managed to get on top of appellant and in a better position. Deputy Sheriff Nicolai Ramos responded to the fight and observed Johnson on top of appellant as appellant grasped Johnson's neck; Johnson and appellant were face-to-face with each other. He directed both men to stop fighting and to place their hands behind their backs. Neither complied. Believing Johnson was the "dominant aggressor," Ramos used his Taser on Johnson first. Immediately immobilized, Johnson's body "locked up." Although Johnson had stopped fighting due to the Taser, appellant continued to grasp onto Johnson's neck. Ramos then deployed his Taser on appellant who also became immobilized. Both men were grunting and grimacing.

Once the men were separated, Ramos noticed that appellant's mouth was covered in blood. Meanwhile, Johnson was bleeding profusely from his left ear. Johnson was missing "the lower lobe of his left ear and a portion of his top left ear as well." Ramos then observed appellant spit an object out of his mouth. Ramos later identified the object as the lower lobe of Johnson's left ear. Ramos also noticed a blood splattered area in the cell and two other portions of Johnson's ear.

Johnson was transported to the hospital, but the hospital staff could not reattach his ear. Appellant was sent to the medical clinic in the facility and was cleared of any injuries from the incident, though he did have redness and swelling on his face and back as well as lacerations to his buttocks and head.

B. Defense Evidence

Police Officer Joshua Strange was present when appellant was arrested the night before his fight with Johnson. At around 9:20 p.m., appellant showed symptoms of being intoxicated—including "red, bloodshot, and glassy" eyes and slurred speech—and was subsequently taken into custody. Appellant was cooperative and able to answer the officer's questions. The officer intended to release appellant without any charges once he was sober. As he was taken into custody, appellant told the officer, "Don't let them rape me."

Detective Scott Paris also testified as a defense witness. He described appellant's injuries from the fight, which included a bite mark, a cut, and an injury to his neck and shoulder.

Police Officer Michael Chiaverini testified about his arrest of Johnson on October 9, 2016. During that instance, Johnson resisted arrest. However, the officer was not injured as a result.

John Cardaile testified about Johnson's theft from Home Depot on October 24, 2016, during which Johnson had picked up a bike and, "doing almost a 360," hit an employee with it.

DISCUSSION

A. Background

The trial court instructed the jury on aggravated mayhem, simple mayhem, specific and general intent and on the use of circumstantial evidence to prove intent.

The court defined the elements of aggravated mayhem with CALCRIM No. 800 as follows:

"The defendant is charged in Count One with Aggravated Mayhem in violation of Penal Code section 205. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant unlawfully and maliciously disabled or disfigured someone permanently or deprived someone else of a limb, organ, or part of his body; [¶] 2. When the defendant acted, he intended to permanently disable or disfigure the other person or deprive the other person of a limb, organ, or part of his body; [¶] 3. Under the circumstances, the defendant's act showed extreme indifference to the physical or psychological wellbeing of the other person. AND [¶] 4. The defendant did not act in self-defense. Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else. [¶] A disfiguring injury may be permanent even if it can be repaired by medical procedures. The People do not have to prove that the defendant intended to kill."

The court used CALCRIM No. 801 to define the elements of simple mayhem as follows:

"Simple Mayhem, a violation of Penal Code section 203, is a lesser included offense of Aggravated Mayhem, as charged in Count One. [¶] To prove that the defendant is guilty of Simple Mayhem, the People must prove that the defendant unlawfully and maliciously: [¶] 1. Removed a part of someone's body; OR [¶] 2. Permanently disfigured someone; AND [¶] 3. The defendant did not act in self-defense. Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else. [¶] A disfiguring injury may be permanent even if it can be repaired by medical procedures."

CALCRIM No. 252 made clear that aggravated mayhem is a specific intent crime while simple mayhem is a general intent crime.

The court used CALCRIM No. 225 to instruct the jury on the use of circumstantial evidence to prove specific intent. The instruction provides:

"The People must prove not only that the defendant did the act charged, but also that he acted with a particular intent. The instruction for the crime explains the intent required. [¶] An intent may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required specific intent, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required specific intent. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required specific intent and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required specific intent was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."

During the jury instruction conference, Candelaria offered a pinpoint instruction, taken almost verbatim from an appellate opinion discussing the sufficiency of the evidence to prove aggravated mayhem. (People v. Park (2003) 112 Cal.App.4th 61, 65‑66 (Park).) The proffered instruction stated: "Aggravated mayhem requires the specific intent to cause the maiming injury. Evidence that shows no more than an 'indiscriminate attack' is insufficient to prove the required specific intent. Furthermore, specific intent to maim may not be inferred solely from evidence that the injury inflicted constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than attack indiscriminately."

The trial court ultimately rejected the proposed instruction as duplicative of the instructions discussed above. The court also found the language of the instruction "muddies the water."

B. Legal Principles

So-called pinpoint instructions usually seek to relate the particular facts to the key part of the defense case. Where they are properly phrased the court must give the instructions if they support the defense theory. The court does not have a sua sponte duty to give pinpoint instructions. (People v. Hill (2015) 236 Cal.App.4th 1100, 1118-1119.) The court may, however, refuse such instructions where they are incorrect statements of the law, are argumentative, duplicative, potentially confusing or not supported by substantial evidence. (People v. Moon (2005) 37 Cal.4th 1, 30.) "A trial court is not required to give pinpoint instructions that merely duplicate other instructions." (People v. Panah (2005) 35 Cal.4th 395, 486.)

When we review the refusal to give a pinpoint instruction we apply the de novo, or independent judgment test. (People v. Posey (2004) 32 Cal.4th 193, 218.) We review all the instructions, keeping in mind that we assume jurors are intelligent persons who can understand and consider the instructions as a whole. (People v. Yoder (1979) 100 Cal.App.3d 333, 338.)

The parties in this appeal do not dispute the elements of simple and aggravated mayhem. Nor is there any serious dispute that the CALCRIM pattern instructions accurately state the elements of each offense. Simple mayhem is a general intent crime requiring only that the defendant intentionally does the act causing the injury. (People v. Ferrell (1990) 218 Cal.App.3d 828, 832.) Aggravated mayhem requires proof that the defendant intended to cause the maiming injury. (Park, supra, 112 Cal.App.4th at p. 64; People v. Assad (2010) 189 Cal.App.4th 187, 195.)

Taking language from appellate opinions and placing it verbatim into a proposed instruction can be inappropriate. The discussion in an appellate opinion regarding a concept is generally not intended to be transmuted into a jury instruction. Courts discussing legal principles for one purpose may not have contemplated their language being used as a jury instruction. (People v. Hunter (2011) 202 Cal.App.4th 261, 277-278; People v. Knoller (2007) 41 Cal.4th 139, 154-155.) The Supreme Court has cautioned courts to carefully review proposed jury instructions based directly on language in appellate opinions. "Language in an appellate opinion which may be a good statement of law or of the reasoning of the appellate court does not necessarily make a good jury instruction." (People v. Adams (1987) 196 Cal.App.3d 201, 204-205.)

C. Analysis

As we have observed, Candelaria does not contend the evidence was either inadmissible or that it is insufficient to support all of the elements of the offense for which he was convicted. Similarly, he does not challenge the accuracy of the instructions given defining the elements of the offense and distinguishing simple mayhem from aggravated mayhem. He simply argues his proposed instruction was necessary to properly advise the jury regarding the key issue in the case, i.e., specific intent to maim.

The proposed instruction is almost a verbatim statement taken from a paragraph in the introductory portion of Park, supra, 113 Cal.App.4th at page 64. However, the court in Park was not concerned with jury instructions but was dealing with a case in which the defendant contended the evidence was not sufficient to prove the required specific intent for aggravated mayhem. As far as we can tell, standard pattern instructions were given to the jury in Park. Thus, it seems clear that the court was not speaking to the issue of jury instructions in the quoted passage. The fact the passage is an accurate statement of the law, does not mean it is suitable for use as a jury instruction. (People v. Adams, supra, 196 Cal.App.3d at pp. 204-205.)

Here, the trial court determined the proposed instruction was duplicative of the pattern instructions already approved, which is correct. The court did observe, such instruction might be appropriate in some scenarios, not presented here. Impliedly, the court determined there was no evidence to support the proposed instruction.

Perhaps the key portion of the instruction is the reference to "indiscriminate attack," whatever that might be. Park, supra, 112 Cal.App.4th 61 used that term to distinguish an unfocused assault that produces an injury which was not intended, from the case where the defendant specifically intends the maiming injury. In order to use the term indiscriminate attack in relation to this offense, and the biting off of a portion of an ear, there would need to be some clarification as to how the jury would use the term. In the context of the facts of this case, the trial court could find the term argumentative.

We are satisfied the distinctions between the general intent crime and the specific intent crime were fully and accurately provided by the pattern instructions we have already discussed. The trial court correctly determined the proposed instruction duplicated the other instructions in its effort to distinguish simple and aggravated mayhem.

In his reply brief, Candelaria argues he "indiscriminately" bit into the victim's ear, thus the instruction would have been helpful. This is not a case where there was an indiscriminate "bite." He not only bit into the ear, he continued to bite into the ear for around two minutes. He bit into the ear long enough and with sufficient force to bite off a portion of the ear, which portion was still in his mouth when authorities broke up the fight. We interpret the trial court's observations about the factual basis to indicate a lack of evidence of some brief, unfocused conduct. That Candelaria did attack a stranger, that fact does not aid him where the act of inflicting the "maiming" injury required both time and continued, deliberate force.

We are satisfied the court properly denied the pinpoint instruction in this case. Even if the court erred, we believe the evidence of specific intent to bite off a portion of the victim's ear is overwhelming. We find any possible error to be harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.