Filed 5/2/17 P. v. Chatman CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SUZANN CHATMAN et al.,
Defendants and Appellants.
D069243
(Super. Ct. No. SCD259575)
APPEAL from a judgment of the Superior Court of San Diego County, Robert F.
O'Neill, Judge. Affirmed.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant Suzann Chatman.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant Rogers Butler.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel
J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
2
Defendants and appellants Suzann Chatman and Rogers Butler were homeless and
occasional guests of the victim, Michael Burt, who, although he had been homeless, had a
small apartment. Apparently because they believed Burt had provided Chatman with a
date rape drug and then sexually assaulted her, late one evening Chatman and Butler
entered Burt's apartment and began attacking him. According to Burt, at one point, while
Butler held Burt down, Butler told Chatman to find him a knife because, "I'm going to
scalp this fucking Indian." Chatman found a knife, and, while Butler and Chatman held
Burt down, Butler began cutting the front of Burt's scalp; when Burt began bleeding
profusely, Chatman and Butler fled. Burt survived the attack, but, according to one of the
physicians who treated him, he had a laceration on his head that was eight centimeters
long and approximately three-eighths of an inch deep; the physician stated that the
laceration reached Burt's skull.
Chatman and Butler were convicted of, among other charges, aggravated mayhem
and torture. On appeal, we reject their contention the court should have sua sponte
provided the jury with an instruction that more fully defined the term "disfigure" as it is
used in the statute making aggravated mayhem a crime. We also reject their related
claims that counsel was ineffective in failing to request an instruction more fully defining
the term "disfigure," that the mayhem statute is unconstitutionally vague and that there
was insufficient evidence they intended to torture Burt.
Because it is predicated on factual issues that are not in the record, on appeal we
reject defendants' claim their attorneys provided inadequate assistance in failing to
interview the physician who treated Burt and in failing to obtain a defense medical
expert. Our disposition on appeal of defendants' inadequacy of counsel claim is without
3
prejudice to the writ of habeas corpus they have filed and for which we have issued an
order to show cause returnable in the superior court.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of November 8, 2014, Burt, who is an alcoholic and who had been
homeless, was in his apartment when Butler and Chatman called him; they told Burt they
were coming over because Butler had left a bicycle and a backpack at Burt's apartment.
Burt and Butler were friends, and Burt had let Butler and Chatman stay with him from
time to time.
Shortly after Burt got the call, someone knocked on Burt's door; Burt, who had
been drinking very heavily and was in his underwear, opened the door and then turned
and walked toward his bedroom so that he could put on a pair of pants. With his back
turned and while in the doorway to his bedroom, Burt was knocked to the floor and hit
his head on the railing of his bed. Burt climbed up on his bed, and Butler and Chatman
began punching him around the head and shoulders. Burt also believed one of the
attackers hit him with a golf club.
Burt later told police that, at one point during the attack, while Butler and
Chatman were holding him on his bed and hitting him, Butler told Chatman to get a knife
and then said, "I'm going to scalp this fucking Indian." According to Burt, Chatman
retrieved a knife and gave it to Butler who cut a piece of Burt's hair and began cutting, in
a sawing motion, at the front of Burt's head. Burt reported that he began bleeding
profusely and that Butler and Chatman then fled from his apartment.
Burt called 911 and was taken to a hospital, where he was treated initially by
emergency room physicians and then a reconstructive surgeon, Dr. Randal Vecchione.
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At trial, Dr. Vecchione testified that Burt had two wounds on the top left side of his head:
one was eight centimeters long and the other was three centimeters long. Both wounds
were three-eighths of an inch deep and exposed Burt's skull. Dr. Vecchione further
testified that the wounds both required deep sutures near the skull, to prevent the wounds
from inverting, as well as superficial sutures. Burt also was treated for broken ribs.
Although Butler's counsel engaged in a fairly vigorous cross-examination, Dr.
Vecchione, who was not retained by any of the parties as an expert, steadfastly refused to
offer an opinion as to whether the head wounds were caused by a sharp object or by blunt
force trauma.
Shortly after the attack, a police investigator interviewed Butler, who denied
cutting Burt with a knife but admitted getting into a fistfight with him. Butler told the
investigator he believed Burt had used a date rape drug on Chatman and had raped her
while she was unconscious. The investigator testified that Butler's hands were bruised
and very swollen at the time of the interview. Burt denied having any sexual relations
with Chatman.
The jury returned a verdict finding Butler and Chatman guilty of aggravated
mayhem (Pen. Code,1 § 205); torture (§ 206); first degree burglary (§§ 459 & 460);
mayhem (§ 203); assault with a deadly weapon (§ 245, subd. (a)(1)); and assault with
force likely to produce great bodily injury (§ 245, subd. (a)(4)). The jury also found true
an allegation that Butler had personally used a deadly weapon in the commission of the
aggravated mayhem, mayhem, torture and burglary, in violation of section 12022,

1 All further statutory references are to the Penal Code.
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subdivision (b)(1); and that Butler had personally inflicted great bodily injury in the
commission of the mayhem and assault.
Butler admitted a prior probation denial and three prior prison terms. (§§ 1203,
subd. (e)(4), 667.5, subd. (b) & 668.)
The trial court sentenced Chatman to a term of seven years to life and Butler to a
term of eight years to life.
DISCUSSION
I
Section 203 states: "Every person who unlawfully and maliciously deprives a
human being of a member of his body, or disables, disfigures, or renders it useless, or
cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of
mayhem." Section 205 in turn states in part: "A person is guilty of aggravated mayhem
when he or she unlawfully, under circumstances manifesting extreme indifference to the
physical or psychological well-being of another person, intentionally causes permanent
disability or disfigurement of another human being or deprives a human being of a limb,
organ or member of his or her body."
With respect to aggravated mayhem, the trial court instructed the jury with
CALCRIM 800, which provides: "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/her) body);
"2. When the defendant acted, (he/she) intended to (permanently disable or
disfigure the other person/ [or] deprive the other person of a limb, organ, or part of
6
(his/her) body);
"AND
"3. Under the circumstances, the defendant's act showed extreme indifference to
the physical or psychological well-being of the other person.
"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.]"
Although at trial they did not ask for or offer any clarifying or amplifying
instruction, on appeal Chatman and Butler argue that CALCRIM No. 800 is inadequate
and defective because it does not fully define the term "disfigure." In particular, they
fault the instruction because it fails to spell out the degree or characteristics of
disfigurement necessary to warrant a conviction of mayhem.
As the People point out, the term "disfigure" is not a technical term that is
unfamiliar to juries and requires any further clarification from trial courts. As the court in
People v. Newble (1981) 120 Cal.App.3d 444, 452 (Newble) noted, the term has been
defined in a popular dictionary as " 'to make less complete, perfect or beautiful in
appearance or character.' (Webster's Third New Internat. Dict. (1971) p. 649.)" More
recently in People v. Santana (2013) 56 Cal.4th 999, 1004 (Santana), and consistent with
Newble, the court stated: " ' "[T]he modern rationale of the crime may be said to be the
preservation of the natural completeness and normal appearance of the human face and
body, and not, as originally, the preservation of the sovereign's right to the effective
7
military assistance of his subjects." ' " While noting that " 'not every visible scarring
wound' may establish mayhem," the court in Santana nonetheless set forth, with
approval, examples of the types of disfiguring injuries that have given rise to mayhem
convictions: "cigarette burns to both breasts ([People v.] Keenan [(1991)] 227
Cal.App.3d [26,] 29); a breast nearly severed by a box cutter (People v. Pitts (1990) 223
Cal.App.3d 1547, 1559 (Pitts)); a three-inch facial laceration from a fingernail file
(People v. Newble, supra, 120 Cal.App.3d at p. 448); forcible tattoos on the breast and
abdomen ([People v.] Page [(1980)] 104 Cal.App.3d [569,] 576); and a five-inch facial
wound from a knife (Goodman [v. Superior Court (1978)] 84 Cal.App.3d [621,] 623).
Other injuries constituting mayhem under section 203 include blinding of an eye from a
kick ([People v.] Sekona [(1994)] 27 Cal.App.4th [443,] 457); severe facial trauma
requiring metal plates and wires to keep the facial bones together (People v. Hill (1994)
23 Cal.App.4th 1566, 1570 (Hill)); a bitten-through lower lip (People v. Caldwell (1984)
153 Cal.App.3d 947, 952); a broken ankle that had not completely healed after six
months (People v. Thomas (1979) 96 Cal.App.3d 507, 512 (Thomas)); and an eye 'put
out' by a machete (People v. Green [(1976)] 59 Cal.App.3d [1,] 4)."
The wide variety of serious injuries set forth by the court in Santana amply
illustrate the ability of jurors to distinguish between the grave nature of the disfigurement
proscribed by sections 203 and 205 and mere blemishes or minor but visible scars that
would not support a conviction. Thus, contrary to defendants' contention, there was no
basis upon which the trial court was required to sua sponte offer an instruction clarifying
such a commonly understood term. (See People v. Estrada (1995) 11 Cal.4th 568, 574.)
The common understanding of the term "disfigure" also largely disposes of
8
Chatman and Butler's other related arguments. First, given the common understanding
and nontechnical nature of the term, as well as the severe characteristics of Burt's injuries,
we find nothing ineffective in counsels' failure to object to CALCRIM No. 800 on the
grounds that the instruction does not set forth the degree or characteristics of
disfigurement necessary to warrant a conviction. In a case in which the victim had an
eight-centimeter (almost three inches) gash on his head—which was three-eighths of an
inch deep and required both deep sutures and superficial sutures—as well as a smaller
second wound, and given the common understanding of the term "disfigure," it was
simply not realistic for counsel to argue, either to the trial court or the jury, that the
wound Burt suffered was not serious enough to meet whatever unstated standard
Chatman and Butler now believe is required. Under these circumstances, counsels'
failure to raise an objection on the grounds now asserted on appeal does not demonstrate
inadequacy but rather a clear and reasonable tactical choice to preserve their own
credibility. (See People v. Wright (1990) 52 Cal.3d 367, 408 [counsel may properly
make tactical choice to preserve counsel's credibility].) It is of course axiomatic that such
tactical choices will not support a claim of inadequate assistance. (See People v. Frye
(1998) 18 Cal.4th 894, 979–980.)
The common understanding of the term of "disfigure" and the nature of Burt's
injuries also defeat defendants' contention the term, as used in the mayhem statute, is
unconstitutionally vague. " 'Reasonable certainty, in view of the conditions, is all that is
required, and liberal effect is always to be given to the legislative intent when possible.
[Citations.] A statute will not be declared void as indefinite if it contains a reasonably
adequate disclosure of the legislative intent regarding an evil to be combated in language
9
giving fair notice of the practices to be avoided." (Newble, supra, 120 Cal.App.3d at
p. 452, italics added;2 see Williams v. Garcetti (1993) 5 Cal.4th 561, 568.) With respect
to mayhem, the court in Newble—where the defendant had slashed the victim's face with
a fingernail file leaving a three-inch long, half-inch deep wound from her ear to her
chin—stated: "[T]he meaning of 'disfigure' in the context of section 203 is sufficiently
definite and certain to inform a person of ordinary intelligence what acts are prohibited.
As to defendant, section 203 is sufficiently certain to put him on notice that slashing the
victim's face with a sharp instrument so as to leave a permanent three-inch scar could
reasonably be found to be disfigurement." (Newble, at p. 453.) Much the same is of
course true here: the term disfigure as used in section 203 was more than adequate to give
Chatman and Butler notice that using a knife to begin cutting away the victim's scalp and
leaving a nearly three-inch long, three-eighths-of-an-inch deep wound on his head was
mayhem.3
II
Section 206 states: "Every person who, with the intent to cause cruel or extreme
pain and suffering for the purpose of revenge, extortion, persuasion or for any sadistic
purpose, inflicts great bodily injury as defined in section 12022.7 upon the person of

2 Contrary to Chatman's suggestion, nothing in Johnson v. United States (2015) ___
U.S.___ [135 S.Ct. 2551] undermines the principle set forth in Newble that a statute that
gives a defendant fair notice of the conduct proscribed meets the requirements of due
process or the Newble court's determination that our mayhem statute meets that standard
in a case, like this, where the victim endured a severe three-inch gash on his skull.
3 We also agree with the People that, in any event, by failing to object to CALCRIM
No. 800, Chatman and Butler forfeited their right to raise the issue on appeal. (See
People v. Guiuan (1998) 18 Cal.4th 558, 570.)
10
another, is guilty of torture. [¶] The crime of torture does not require any proof that the
victim suffered pain." As the People point out, torture requires proof of two elements: (1)
the infliction of great bodily injury and (2) the specific intent to cause cruel or extreme
pain and suffering for revenge, extortion or persuasion or any sadistic purpose. (People
v. Burton (2006) 143 Cal.App.4th 447, 452.)
As we have indicated, Burt testified he opened his door to Chatman and Butler,
turned to go back in his bedroom and then, while his back was turned, he was attacked,
thrown to the floor, beaten with fists and a golf club, and, while being held down on his
bed by both defendants, subjected to an attempt to literally remove the scalp from his
head. Contrary to their argument on appeal, Burt's testimony was sufficient to support
their conviction of torture.
First of all, we reject defendants' argument that Burt's credibility was so
thoroughly impeached that the jury had no basis upon which to believe his version of
events. Determinations of credibility are exclusively the province of the jury. (People v.
Letner and Tobin (2010) 50 Cal.4th 99, 111.) Unless a witness's testimony is "physically
impossible or inherently improbable, [the] testimony of a single witness is sufficient to
support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Here, the physical evidence, including in particular the deep wounds in Burt's head
and the broken ribs he suffered, fully corroborated Burt's testimony he was the victim of
a fairly severe beating. Moreover, the bruising and swelling detectives observed on
Butler's hands, his concession he had been in a fight with Burt and his stated belief Burt
had raped Chatman fully support Burt's testimony the beating he received was quite
literally at the hands of Chatman and Butler. Thus, the only aspect of Burt's testimony
11
that defendants can arguably challenge is Burt's accusation that, with Chatman's help,
Butler attempted to scalp him.Because so much of the rest of Burt's recapitulation of events could be
corroborated, the jury could quite reasonably credit Burt's testimony that the deep gashes
in his head were the result of an attempted scalping. Of course, the three-inch wound
itself was perhaps the most powerful corroboration of Burt's statements. Thus, in
determining whether to credit Burt's version of events, the jury could reasonably
disregard his admitted alcoholism, his drinking the night of the attack, the inability of
police detectives to find a knife in or near Burt's apartment and the fact Burt made no
accusation of scalping until he reached the hospital.
We also reject defendants' contention there was insufficient proof they intended to
inflict the extreme pain and suffering needed to establish torture. While the People
concede, and we agree, that many cases of torture involve more horrific acts and more
severe injuries (see, e.g., People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430; People v.
Pre (2004) 117 Cal.App.4th 413, 419-420; People v. Misa (2006) 140 Cal.App.4th 837,
843; People v. Baker (2002) 98 Cal.App.4th 1217, 1223; People v. Burton, supra, 143
Cal.App.4th at p. 452), a jury could quite reasonably conclude defendants' attempt to lift
the skin off of Burt's skull, after severely beating him in what was nothing short of an
ambush, as a means of exacting retribution for an alleged sexual assault, was performed
with an intent to inflict severe pain and suffering. As the court in People v. Jung (1999)
71 Cal.App.4th 1036 stated: "That other victims of torture may have suffered more than
the victim in this case sheds no light on the sufficiency of the evidence of defendants'
intent to cause [this victim] severe pain and suffering." (Id. at p. 1043.)
12In sum, the evidence in this record was sufficient to support defendants' torture
convictions.
III
Relying on their contention that their attorneys did not attempt to interview Dr.
Vecchione before trial or obtain a medical expert who might have supported the theory
that the head wounds Burt suffered were from blunt force trauma, rather than an attempt
to scalp him with a knife, defendants argue they received ineffective assistance of
counsel. The validly of these contentions depend on factual matters outside the record on
appeal, including, in particular, whether the deficiencies they assert in fact occurred and,
if they occurred, whether they occurred for any tactical or other reason. Thus, while we
reject their claims of ineffective assistance on appeal, we do so without prejudice to their
right to raise those claims by way of the joint writ of habeas corpus defendants have filed,
which we have considered with their appeals and for which we have issued an order to
show cause returnable in the superior court.4

4 We also deny without prejudice Butler's related request for judicial notice.
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DISPOSITION
The judgments of conviction are affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
O'ROURKE, J.