P. v. Endita
Filed 5/15/06 P. v. Endita CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. ROBERT NONAY ENDITA, Defendant and Appellant. | D045683 (Super. Ct. No. SCS184179) |
APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Reversed in part and affirmed in part with directions.
A jury convicted Robert Nonay Endita of aggravated mayhem (Pen. Code,[1] § 205; count 1), torture (§ 206; count 2), assault with intent to rape (§ 220; count 3); assault with intent to commit mayhem (§ 220; count 4), residential burglary (§§ 459/460; count 5), attempted forcible rape (§§ 664/261, subd. (a)(2); count 6), assault with a deadly weapon (§ 245, subd. (a)(1); count 7), and false imprisonment (§§ 236/237, subd. (a); count 8). The jury also found true allegations that Endita had personally used a deadly and dangerous weapon, to wit, a knife, during the commission of all counts (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1), 12022.3, subd. (a)), had personally inflicted great bodily injury upon the victim during the commission of counts 3 through 8 (§§ 12022.7, subd. (a), 12022.8), and that another person, other than an accomplice, was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)).
After a bifurcated trial on prior conviction and aggravating factor allegations, the jury also found true that Endita had suffered three prior strike convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) and those priors also constituted a serious felony prior conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)). The jury was unable to reach agreement on the aggravating factors and the trial court declared a mistrial as to those.
The court sentenced Endita to prison for a total term of 59 years to life, consisting of two consecutive indeterminate terms of 25 years to life for the aggravated mayhem and attempted rape counts, plus a determinate term of nine years (four years for the use of a deadly weapon enhancement [§ 12022.3, subd. (a)] and five years for the prior serious felony conviction [§ 667, subd. (a)(1)]). The court imposed and then stayed sentences pursuant to section 654 on the remaining counts and their enhancements.
Endita appeals, contending the trial court erred in admitting evidence of a prior sexual offense for which he had been convicted in 1991; the evidence was insufficient to support his convictions for aggravated mayhem, assault with intent to commit mayhem, torture, and burglary; and he cannot stand convicted of the lesser assault counts because they were necessarily included offenses of other counts for which he was convicted. The People concede the count 3 assault with intent to commit rape and the count 4 assault with intent to commit mayhem must be reversed. We reverse counts 3 and 4 and affirm the remaining counts.
FACTUAL BACKGROUND
On April 15, 2004, as Juana R. worked as a housekeeper at the Traveler's Inn Suites in Chula Vista, a man she did not know walked past her in a hallway while she was on her way to room 308 with her cart of cleaning and bedding supplies. The man, who was carrying a white laundry bag, said hello to her. About 15 minutes later as she was cleaning alone in room 308 with the door held open by the cart, the same man came to the door and asked in English whether a certain person was there. He left the doorway when she told him, " No."
A short time later, the same man reappeared in the doorway holding a cell phone to his ear and asked in English if Juana spoke Spanish. When she replied, " Yes," the man asked her to help him with the telephone conversation. As Juana walked toward the man, he stepped into the room and gave her the phone. When she took the phone and discovered it was turned off, she looked at the man's eyes and then saw him take out a knife, open it up and indicate she should be quiet. Scared for her life, Juana screamed and the man hit her in the face several times. As she tried to move toward the door the man continued hitting her in the face and head area, holding her by her hair and pushing her into a table, causing one of the table legs to break. When Juana again tried to move toward the door, the man struck her in the face, causing her to fall back onto the couch. The man then got on top of her and continued to strike her.
When the man got up to close the door, Juana again tried to escape. The man again hit her in the face and pushed her backwards, causing her to fall into another table and onto the floor next to the couch. The man then pushed her head down, punched her in the face with a closed fist and put his jacket around her neck, twisting it several times and pulled it to choke her. At some point, the man put the knife down as he continued to choke her with the jacket with one hand and hold her head down and punch her with the other. When Juana was close to losing consciousness, she acted as if she had fainted. When she lifted her head slightly she noticed the knife on a side table. She used all her strength to grab the knife and push it toward him. When the man could not get the knife back, he loosened the jacket and left the room running.
Juana, who was bleeding from her face and mouth, then closed the room door and called the motel manager for help. Juana did not know the extent of her facial injuries until the manager came and had her look in a mirror. The manager called the police while Juana applied a towel to her face to stop the bleeding.
After Juana was questioned about the incident and taken to the hospital for treatment of injuries to her face and left hand, the police collected evidence from the room. The man who had attacked Juana left without his jacket, which had a condom in one pocket and a bottle of perfume in another, and his white bag containing miscellaneous clothing, a disposable camera and five pornographic magazines depicting a wide array of sexual acts. The knife, which had a black folding handle, and the cell phone were also left behind in the room. Investigating officers took photographs of the room, which showed at least one bloody fingerprint on the inside of the door and blood on the floor and a rubber glove found on the floor near the couch. Additionally, the officers dusted the room and various objects for latent fingerprints.
During this time, two of the occupants who lived in room 308, but were away at the time of the incident, returned to the motel and talked with the police. Neither the cell phone nor the folding black knife belonged to them or had been in the room before the attack on Juana. Nothing from the room or the personal belongings of the occupants was missing after the incident.
Several days later a white tank top and a blue hat with blood stains was found in the motel's breezeway. When the results of the 16 latent prints taken from room 308 were completed, six were identified as belonging to Endita. A photographic lineup was prepared, which included Endita's picture, and taken by a detective to the motel. As the detective walked up the stairs toward Juana, she pointed and identified Endita's photo on the exposed card in the detective's hand, saying " es este, es este," meaning " it's this one, it's this one here." Juana began shaking and crying when she saw Endita's photograph.
Chula Vista Police Detective Mark Jones arrested Endita on April 30, 2004, 15 days after he had attacked Juana. At that time, Endita, who had a noticeable knife wound in his left forearm and an infected laceration on his right " pinky" finger, agreed to talk with Jones. When Jones told him he was pretty sure Endita was present at an assault he was investigating, Endita replied he knew the incident and that he was " pretty strung out on . . . meth[, he had gotten into a fight at the Chula Vista trolley station] and . . . needed to clean [his] hands." Endita had walked to a nearby hotel, saw a door open and asked to use the sink because his hand was bleeding. When " she" said " no," he " just got mad and that's it." He was not able to use the sink because " she started hitting on me and yelling and stuff." Endita started hitting her back with a closed fist in the face. He believed he had a cell phone with him that day and also a bag of clothes and a blue Playboy hat, but he lost them " somehow." He thought the woman had a knife which she used to threaten him.
When Jones asked Endita to tell him what really happened, because his prints were " on the porno mags inside the bag [he was] carrying," Endita said they were his and he " didn't touch her." When Jones asked Endita about his 1991 prior conviction for rape, Endita said he had not hurt her, and that he " didn't rape this girl." He said, " I have my wife," but conceded he had not seen her for several days before the incident.
Endita claimed he could not remember how things happened and he did not want to remember. Although he thought the woman had been hurt because he had hit her in the face, he hoped she had not gotten any knife wounds. If she did, Endita said he had done it. After a pause, he asked Jones, " I didn't kill her, did I?" When Jones told him, " no," Endita again claimed he had not raped her.
After Jones confronted Endita with the facts Endita had asked the woman " to translate and she realized there was nobody on the phone, and [he] put [his] finger to his mouth like be quiet," Endita said he needed money and was going to rob her, but it went awry when she started yelling and hitting him, and he " went crazy." He claimed the knife was just there in the room on a table. When he opened it, it fell on the ground and " she got ahold of it and tried to [get him,] too." When he got the knife back he tried to slash her back. Endita asserted he was not " trying to stab her[, but ] was just trying to slash her."
Endita could not remember wrapping anything around her neck, but thought he was trying to cover her mouth with his hand to " shut her up." Somehow during the struggle with the woman he was cut between his fingers and then " took off." He stopped in another room to clean up and then tossed the clothes he had been wearing. Endita claimed his intention when he went into the room was " [g]etting some money."
After a short break in the interview, Jones asked Endita about what caused the incident back in 1991. Endita said it was the same thing, " smoking crack." He explained that that was why he had " porno" magazines these days because when he is under the influence it makes him want sex more than normal. On drugs, Endita could not sleep and sex consumed his thoughts and it just builds " until [he gets] it." He had had sex a couple of days before this incident. He did not rape the woman in the room because that was not his intention, he just wanted to get some money. Endita claimed he was not like he was before because he was older, had a wife, and used " porno" and " porno videos." In the past he could not control himself when he was under the influence. Although he was under the influence of drugs that day, he did not " get off" or have sex until he saw his wife several days later.
Endita was charged in the instant case and the above evidence was presented at trial, including the videotape of his interview with Jones. In addition, the plastic surgeon who treated Juana for the severe knife lacerations to her face and hand, testified about her injuries, surgery and the resulting permanent scars and damage.
Further, evidence of Endita's prior rape conviction was introduced after the court admonished the jury as to its limited purpose. Barbara D. testified that on a warm October night in 1991, Endita came into her ground floor apartment through an open window and confronted her as she stood naked in her bathroom. With a large stick in his hand, he told her to do what he said and he would not hurt her. He then pushed her down on the floor, wrapped a towel around her head, and turned off the light. He took off his clothes, knelt down between her legs, parted them and had intercourse with her. It was difficult for Barbara to breathe with the towel covering her face. When she jerked away in response to Endita putting his mouth on her breast, he told her he had a big knife. After he ejaculated, he got dressed and moved into Barbara's adjacent bedroom, taking some money before leaving the apartment. Barbara saw Endita holding a lock-bladed knife, with a four-inch long blade, in his hand as he fled.
DISCUSSION
I
ADMISSION OF EVIDENCE OF 1991 RAPE
In limine, the prosecutor moved under Evidence Code sections 1101, subdivision (b) and 1108, to introduce evidence about Endita's 1991 rape conviction to show that Endita harbored the same intent to rape in this case as he had in the earlier case. Endita sought to exclude such evidence, arguing the current case was not substantially similar to the prior rape case to be admissible to prove intent, and if the prior evidence were admitted, it would prejudicially inflame the jury against him. The prosecutor pointed out that the facts of this case revealed an ambiguity as to whether Endita intended to rape Juana, but urged such facts were sufficiently similar to the evidence of the prior rape case to resolve the ambiguity regarding Endita's intent.
The court ruled the evidence was admissible because " certainly it would be relevant to prove or disprove a material fact in this case, the intent of the defendant [for Evidence Code section 1101, subdivision (b)]. And looking at [Evidence Code section] 1108 independently, also appears that it would be permissible." The court observed the similarities between the prior and instant offenses, noting that although there was not a rape in this case, the prior simply went to " a suggestion of what his ultimate aim was, the intent issue." After conducting an independent balancing under Evidence Code section 352, the court further found the prior rape evidence more probative than prejudicial.
On appeal, Endita contends the trial court abused its discretion in admitting evidence of his 1991 rape conviction. He specifically argues such evidence was inadmissible under Evidence Code sections 1101, subdivision (b) and 1108, because there was no independent evidence from which an inference could be made that he had the intent to rape in this case. He further asserts the admission of the other sex crime evidence was more prejudicial than probative under Evidence Code section 352.[2] We conclude there was no abuse of discretion.
Generally, evidence of other crimes or misconduct is inadmissible when it is offered to show that a defendant had the criminal disposition or propensity to commit the crimes charged. (Evid. Code, § 1101, subd. (a).) However, evidence of other crimes or misconduct by a defendant is admissible if it " ' . . . [tends to] logically, naturally, and by reasonable inference . . . establish any fact material for the People, or to overcome any material matter sought to be proved by the defense.' " (People v. Peete (1946) 28 Cal.2d 306, 315.) Evidence Code section 1101, subdivision (b), codifies this exception to the general rule of inadmissibility by providing for the admission of such evidence " when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than [the defendant's] disposition to commit such [crimes or bad acts]."
As our Supreme Court noted in People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt):
" The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' " probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (Id. at pp. 402-403.)
Thus, to be relevant on the issue of intent, and, presumably, motive, uncharged crimes need only be sufficiently similar to a charged offense to support the inference that the defendant probably harbored the same intent in each instance. (People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp).) However, even if evidence of an uncharged offense is relevant on the issue of intent, it may nonetheless be excluded if its admission would be more prejudicial than probative. (Evid. Code, § 352, Kipp, supra, 18 Cal.4th at p. 371.)
Evidence Code section 1108, subdivision (a) provides that " [i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." This section allows admission, in a criminal action in which the defendant is accused of one of a list of sexual offenses, of evidence of the defendant's commission of another listed sexual offense that would otherwise be made inadmissible by Evidence Code section 1101, subdivision (a). The prior and charged offenses are considered sufficiently similar if they are both sexual offenses enumerated in Evidence Code section 1108. (People v. Frazier (2001) 89 Cal.App.4th 30, 41.)
In other words, evidence of Endita's prior rape offense and conviction is admissible to prove he has a propensity to commit the charged offense of attempted rape and assault with intent to commit rape offenses, which are all listed in section 1108, subdivision (d)(1)(A)(B) and (D), unless such evidence is excluded as more prejudicial than probative under Evidence Code section 352. (Evid. Code, § 1108, subd. (a).) As our Supreme Court stated in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), in balancing such Evidence Code section 1108 evidence under Evidence Code section 352, " trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (Id. at p. 917.)
On appeal, we review the admission of other acts or crimes evidence under either Evidence Code section 1101 or 1108 for an abuse of the trial court's discretion. (Kipp, supra, 18 Cal.4th at p. 371.) The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is " entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.]" (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) We will not find that a court abused its discretion in admitting such other acts evidence unless its ruling " 'falls outside the bounds of reason.' [Citation.]" (Kipp, supra, 18 Cal.4th at p. 371; see also People v. Ochoa (2001) 26 Cal.4th 398, 437-438.)
Here, as the trial court correctly noted, Endita's intent in entering the motel room was a primary or material disputed issue and was one of the elements necessary for conviction of the charges for burglary, attempted forcible rape, and assault with intent to commit rape. Evidence of Endita's prior conviction for rape was thus very relevant to the issue of what his intent was in entering the motel room and attacking Juana in this case. Because Endita had claimed in his police interview he only intended to rob Juana, not rape her, while other evidence in the record showed his intent was to rape her,[3] as the prosecutor represented, Endita's intent was somewhat ambiguous. Evidence of his prior rape was also relevant because of this latent ambiguity. (See People v. Kelley (1967) 66 Cal.2d 232, 242-243.)
Further, the evidence of the prior rape was sufficiently similar to the current offense that it could properly be used to show the intent to rape. In both cases, Endita entered a private room where an unknown woman was alone. He possessed the same type of folded knife in each crime with which he threatened each victim, telling each to be quiet and to cooperate. By his own words during his arrest interview, he was on drugs during both offenses, which heightened his desire for sex, and one of his intents in entering each premise was to obtain some money. In the earlier rape, Endita wrapped a towel around the victim's head. In this case he wrapped his jacket around the victim's neck. Although he was successful in raping the victim who was not otherwise hurt in the prior case, his success here was thwarted by Juana's resistance which left her seriously injured by Endita's knife and conduct. Nonetheless, we believe the underlying facts were sufficiently similar to this case so that one could infer Endita " ' " probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 403.) Therefore, the trial court properly exercised its discretion in concluding the evidence was admissible under Evidence Code section 1101, subdivision (b) for purposes of showing Endita's intent.
Likewise, the court properly admitted the evidence of Endita's prior rape under Evidence Code section 1108. As noted above, because the prior rape and current charged sex offenses fell within the ambit of Evidence Code section 1108 and were sufficiently similar, the prior rape evidence could properly be admitted as propensity evidence. Moreover, Evidence Code section 352 did not require the exclusion of the evidence. The court carefully weighed the probative value of such evidence against its prejudicial value and found the probative value outweighed any prejudice in admitting the evidence for the limited purpose of showing Endita's intent in entering the motel room and his attack on Juana. The facts of the prior rape were brief, certain and not misleading. Although there had been a threat of violence during that offense, none was present as compared with the violence in this case. The court considered the circumstances of each case and found the evidence of the prior rape similar and more probative than prejudicial. The court then not only gave a specific instruction which limited such evidence before its presentation, it also gave the standard CALJIC instructions on other crimes evidence before deliberations. Further, both counsel explained the limited use of the prior conviction evidence in closing arguments. We presume the jury understood and applied the limited purpose of the other crimes evidence. We simply cannot find on this record that Endita was unfairly prejudiced by the admission of the evidence of his earlier rape.
To the extent, Endita suggests Evidence Code section 1108 is unconstitutionally applied in this case because it allowed the jury to convict him solely on propensity evidence, we note that in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court rejected the argument the Legislature may not constitutionally permit a jury to consider the defendant's propensity to commit a particular type of crime in deciding the defendant's guilt of a current offense of the same type of crime. " The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair. [Citations.]" (Id. at p. 913.) Contrary to Endita's premise, Endita's convictions for the attempted rape and assault with intent to commit rape were not solely based on his propensity to commit sex crimes because, as earlier noted, there was other relevant evidence that suggested such intent. In addition, as the trial court properly found, the prior rape evidence was not so prejudicial as probative. No due process violation is shown.
II
SUFFICIENCY OF THE EVIDENCE
Endita contends the evidence was insufficient to support his convictions for aggravated mayhem (count 1), assault with intent to commit mayhem (count 4), torture (count 2), and burglary (count 5). We disagree.
In reviewing the sufficiency of the evidence to support a conviction, we determine " 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)
In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether " ' " any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that " on no hypothesis whatever is there sufficient substantial evidence to support the verdict" the conviction will not be reversed. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
A. Mayhem and Torture Counts
With regard to the mayhem and torture counts, Endita specifically argues there was no evidence to show he had the specific intent to disfigure or cut Juana, or evidence to show he specifically intended to inflict cruel and extreme pain for any purpose enumerated in section 206 defining torture. We conclude there was sufficient evidence from which the jury could find Endita had the requisite specific intent for each crime.
Regarding the commission of aggravated mayhem, section 205 provides in relevant part that, " [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." Aggravated mayhem is a specific intent crime which requires proof the defendant specifically intended to cause the maiming injury, i.e., the permanent disability or disfigurement. (People v. Ferrell (1990) 218 Cal.App.3d 828, 833 (Ferrell).) Similarly, assault with intent to commit mayhem requires the specific intent to inflict a disabling or disfiguring injury. (See CALJIC No. 9.09.)[4]
" [S]pecific intent may be inferred from the circumstances attending an act, the manner in which it is done, and the means used, among other factors." (People v. Lee (1990) 220 Cal.App.3d 320, 325 (Lee).) Thus evidence of a " controlled and directed" attack or an attack of " focused or limited scope" may provide substantial evidence of such specific intent. (Id. at pp. 325-326.) However, where the evidence shows no more than an " indiscriminate" or " random" attack, or an " explosion of violence" upon the victim, it is insufficient to prove a specific intent to maim. (Ibid.)
With regard to the crime of torture, section 206 provides in pertinent part that, " [e]very person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, . . . , persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain." [5] Section 12022.7 defines great bodily injury as " a significant or substantial physical injury." Therefore, torture consists of two elements: (1) a person inflicted significant or substantial physical injury upon another, and (2) that person did so with the specific intent of causing cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or any sadistic reason. (Pre, supra, 117 Cal.App.4th at p. 419 quoting People v. Baker (2002) 98 Cal.App.4th 1217, 1223. (Baker).)
As with aggravated mayhem, the intent necessary for torture, i.e., to cause cruel or extreme pain, can be established by the circumstances of the offense. (People v. Hale (1999) 75 Cal.App.4th 94, 106 (Hale).) In addition, " [t]he condition of the victim's body may establish circumstantial evidence of the requisite intent." (People v. Mincey (1992) 2 Cal.4th 408, 433 (Mincey).)
In this case, the record shows that after Endita approached Juana with a cell phone, he took out a folding knife, opened it, motioned her to be quiet, and when she screamed, he slashed her numerous times in the face and head while holding her by the hair. This initial attack on Juana focused on a particularly vulnerable portion of her body, her face and head. The action of slashing her face repeatedly gave Endita's blows more force and the greater ability to inflict serious injury than if he had merely jabbed or stabbed at Juana's face. Endita continued to slash at her face even as she struggled, fell into a table and he pushed her onto the couch, holding her down with his weight. His actions were controlled and directed and clearly intended to cause significant injury to Juana's face. The injuries to Juana's hand was likely caused by her attempts to protect her face and to free herself from Endita's hold. From these facts, a jury could reasonably infer that Endita essentially limited his attack to Juana's face rather than indiscriminately attacking her, and find that the attack was guided by the specific intent of inflicting serious injury upon Juana's face and head. (See People v. Park (2003) 112 Cal.App.4th 61, 68-70; People v. Campbell (1987) 193 Cal.App.3d 1653, 1668-1669.)
A reasonable jury could also infer from these facts as well as from Endita's own statements made during his interview with police several weeks after the offenses against Juana, about trying to slash her with the knife rather than stab her, that Endita had had the intent to permanently disfigure Juana during the attack. The cuts to Juana's face left her with permanent scars., and a main tendon of her left hand near her ring finger was severed such that she cannot close her hand, making it difficult to perform her duties as a housekeeper. A jury could reasonably conclude from the totality of this evidence that Endita had an intent to maim Juana and to cause her permanent injury when he attacked her sufficient to support the aggravated mayhem and assault with intent to commit mayhem convictions.
Similarly, a jury could reasonably conclude from the totality of the injuries inflicted on Juana and the circumstances surrounding the offenses that Endita intended to cause cruel or extreme pain to Juana to persuade her to submit to his criminal designs and did so. (See Mincey, supra, 2 Cal.4th at p. 433; Hale, supra, 75 Cal.App.4th at p. 106.) As noted above, the circumstances of the crime showed the attack with the knife was deliberately focused on Juana's face as Endita tried to ensure she remain quiet and submit to his demands, and the injuries from the knife were substantial to her face and left hand. Further, it could be inferred from Endita's statements to the police that he had had a persuasive or sadistic purpose in inflicting the injuries on Juana in order to cause her extreme pain.
Moreover, Endita subjected Juana to prolonged physical abuse by not only slashing her with the knife while pulling her hair, he pushed her into furniture and to the ground and upon a couch whenever she tried to escape, and at one point wrapped a jacket around her neck, twisting it tightly in an effort to choke her into submission. Given the totality of the circumstances, the jury could reasonably conclude Endita intended to inflict cruel or extreme pain on Juana for the purpose of persuading her to comply with his perverse sexual desires.
In sum, the record contains substantial evidence from which a reasonable jury could have found beyond a reasonable doubt that Endita had the specific intent to maim and the intent to cause cruel and extreme pain to Juana for persuasion or sadism to support Endita's convictions for aggravated mayhem, assault with intent to commit mayhem, and torture.
2. Burglary
Here, the jury was provided with a modified CALJIC No. 14.50 which defined burglary, in relevant part, as " Every person who enters any building with the specific intent to commit rape, mayhem, assault with a deadly weapon or by means of force likely to produce great bodily injury, sexual battery by restraint, battery causing serious bodily injury, or false imprisonment by violence or menace, is guilty of the crime of burglary in violation of . . . section 459." [6] The instruction also told the jury that the person had to have the specific intent to commit any of the listed crimes " [a]t the time of the entry" into the hotel room. CALJIC No. 14.59 further told the jury, " [i]f you are satisfied beyond a reasonable doubt and agree unanimously that defendant made an entry with the specific intent to commit rape, mayhem, assault with a deadly weapon or by means of force likely to produce great bodily injury, sexual battery by restraint, battery causing serious bodily injury, or false imprisonment by violence or menace you should find the defendant guilty. You are not required to agree as to which particular crime the defendant intended to commit when he entered."
On appeal, Endita asserts there was insufficient evidence to support his burglary conviction, arguing there was no substantial evidence to establish he had the intent to commit any of the felonies listed at the time he entered the motel room. He specifically argues there is no evidence to show he intended to apply violent force to Juana until after he entered the room and she resisted his demands. In addition, to the extent the jury may have found he entered the room with the intent to commit rape, he claims such was an insufficient felony or theory because it was based on the erroneous admission of evidence of his prior rape. Although Endita concedes there is sufficient untainted evidence he entered the room with the intent to commit an assault with a deadly weapon as the felony upon which the burglary conviction can be supported, relying on People v. Perez (2005) 35 Cal.4th 1219, 1233 (Perez) and People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 (Guiton), he asserts such conviction cannot be saved because " it is impossible to determine from the general verdict of guilt for burglary . . . whether the jurors resorted to a valid or invalid theory of guilt." We disagree.
Although the People had to show that Endita entered the motel room with the intent to commit any of the listed felonies to support the burglary conviction, it was unnecessary for the jury to unanimously agree which of those felonies he intended because " where the evidence shows only a single discrete crime [as the charged burglary here] but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Further, that the crime of burglary may be considered complete at the time of entry regarding its intent does not foreclose " consideration of the acts and conduct of the intruder after entry as part of the commission of the crime. . . . " (People v. Walls (1978) 85 Cal.App.3d 447, 453 (Walls).)
As already noted, intent to commit a crime " is rarely susceptible of direct proof and may be inferred from the circumstances disclosed by the evidence. [Citations.]" (Walls, supra, 85 Cal.App.3d at p. 452.) " Where the facts and circumstances of a particular case and the conduct of the accused reasonably indicate his purpose in entering the premises is to commit . . . any felony, the determination [he is guilty of burglary] may not be disturbed on appeal. [Citations]." (Ibid.)
Here, there was substantial evidence in the record that Endita harbored the specific intent to commit several different felonies when he entered the motel room. As noted above, there was evidence from which the jury could conclude his primary intention was to rape Juana, both from the current facts and other crimes evidence, which we have found properly admitted. Further, from the circumstances of making sure Juana was alone, carrying the knife within easy reach, and using a ruse to get close to her, the jury could reasonably infer Endita not only intended to commit an assault with the deadly weapon on Juana as he concedes, but also intended to use that knife to forcibly restrain her and to maim her by inflicting serious or great bodily injuries upon her to obtain his sexual desires.
Contrary to Endita's position, there was sufficient evidence to support every theory of the intended felony at entry advanced by the prosecutor. " Whether the entry was [then] accompanied by the requisite intent [was] a question of fact for the jury." (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) Because the jury could reasonably infer from Endita's conduct and the circumstances of the case that he entered the motel room in order to facilitate commission of any of those listed felonies, we will not disturb his burglary conviction. (People v. Nunley (1985) 168 Cal.App.3d 225, 232.)
Moreover, Endita's reliance on Guiton and Perez is misplaced in this case. Each of the listed felonies is legally possible based on the facts adduced at trial. Thus, even if arguably one of the theories were factually invalid, absent an affirmative indication in the record that the verdict actually did rest on that inadequate ground, reversal is not required because a valid ground for the verdict remains, which Endita himself has acknowledged. (See Perez, supra, 35 Cal.4th at p. 1233; Guiton, supra, 4 Cal.4th at p. 1129.) Nothing in the facts, instructions, arguments of counsel, communications from the jury during deliberations, or verdicts in this case " 'affirmatively demonstrates a reasonable probability that the jury in fact found [Endita] guilty [of burglary] solely on [an] unsupported theory.' [Citation.]" (Perez, supra, 35 Cal.4th at p. 1233, citing Guiton, supra, 4 Cal.4th at p. 1130.)
III
LESSER INCLUDED OFFENSES
Endita finally contends his assault convictions embraced or were embraced by his other substantive convictions such that he cannot stand convicted of both the greater and the lesser offenses. He specifically argues he cannot stand convicted of the count 3 assault with the intent to commit rape or the count 4 assault with intent to commit mayhem because those crimes were respectively necessarily included offenses of his count 1 aggravated mayhem conviction and his count 6 attempted forcible rape conviction. Endita further argues his count 7 aggravated assault conviction should be reversed as a necessarily included offense of his count 1 aggravated mayhem conviction, or alternatively, of his count 2 torture conviction. Finally, he claims the aggravated assault conviction should be reversed because it was wholly included within his convictions for attempted rape and assault with intent to commit rape and their sentencing enhancements under the accusatory pleading test for lesser and greater offenses.
The People concede assault with intent to commit rape is a necessarily included offense of attempted rape and intent to commit mayhem is a necessarily included offense of aggravated mayhem and both lesser offense convictions should be reversed. However, the People assert Endita's aggravated assault conviction is not a lesser included offense of aggravated mayhem or torture, or that it is subsumed in his attempted rape or assault with intent to commit rape convictions when viewed with their sentencing enhancements under the accusatory pleadings test. We agree.
Although the general rule in California is that a single act or course of conduct by a defendant can lead to multiple convictions (§ 954; People v. Pearson (1986) 42 Cal.3d 351, 354, " a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.]" (People v. Montoya (2004) 33 Cal.4th 1031, 1034 (Montoya).) For purposes of this rule, " we apply the elements test, asking whether ' " all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense." ' [Citation.] In other words, 'if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.' [Citation.]" (Ibid.) Further, " a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.)
We, therefore, accept the People's concession and reverse counts 3 and 4. The assault with intent to commit rape necessarily embraces the attempted forcible rape (see People v. Ghent (1987) 43 Cal.3d 749, 756-757) and the completed aggravated mayhem, of necessity, includes the completed offense of assault with intent to commit mayhem. (See People v. Ausbie (2004) 123 Cal.App.4th 855, 859 (Ausbie); People v. De Angelis (1979) 97 Cal.App.3d 837, 841.) Further, we agree with the People that the aggravated assault, or assault with a deadly weapon or by means of force likely to produce great bodily injury, is not an offense necessarily included in aggravated mayhem or torture. We additionally reject Endita's argument regarding the aggravated assault conviction advanced under an accusatory pleading test which includes enhancement allegations.
As noted earlier, section 205 provides that " [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. . . ." Assault with a deadly weapon or by means of force likely to produce great bodily injury, by contrast, is defined in section 245, subdivision (a)(1) as " [a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison. . . ." Applying the elements test to these two offenses, the crime of assault with a deadly weapon or by means of force likely to produce great bodily injury is not a lesser included offense of aggravated mayhem because the disfiguring injury or disability may be inflicted without the use of a deadly weapon or by use of force not necessarily likely to cause great bodily injury. (See Ausbie, supra, 123 Cal.App.4th at pp. 860-862.)
Moreover, even if we apply the accusatory pleading test, which is usually used " to determine whether to instruct a jury on an uncharged lesser offense [citations]" (Montoya, supra, 33 Cal.4th at p. 1035), we reach the same conclusion because such test does not assist Endita in this case. Generally, the accusatory pleading test looks to whether " 'the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified [some] lesser offense is necessarily committed.' [Citation.] " (Ibid.) In doing so, " we consider only the pleading for the greater offense." (Id. at p. 1036, fn. omitted.)
Here, the greater offense of aggravated mayhem was alleged in count 1: " On or about April 15, 2004, [Endita] did unlawfully, and under circumstances manifesting extreme indifference to the physical and psychological well being of another, intentionally caused permanent disability and disfigurement and deprivation of a limb, organ and body member of [Juana], a human being, in violation of [s]ection 205." The pleading does not allege that the permanent disability and disfigurement was accomplished by means of a deadly weapon, or by force likely to produce great bodily injury. Thus the pleading for the greater offense of aggravated mayhem does not include the lesser offense of assault with a deadly weapon or by means of force likely to produce great bodily injury. (See Ausbie, supra, 123 Cal.App.4th at p. 863.) The fact that count 1 also alleged a sentencing enhancement for the use of a deadly weapon, " to wit: a knife," does not change this determination as such allegations are not properly considered to be part of the accusatory pleading and may not be used in determining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92, 101 (Wolcott).)[7]
Similarly, aggravated assault is not a necessarily included offense of torture. As already noted, torture consists of two elements: (1) the infliction of great bodily injury on another; and (2) the specific intent to cause cruel or extreme pain and suffering for revenge, extortion or persuasion or any sadistic purpose. (Baker, supra, 98 Cal.App.4th 1217, 1223.) Although both aggravated assault and torture involve serious physical injury, the statutory definition of torture does not explicitly include the aggravated assault elements of physical force or violence. In other words, torture does not require the bodily injuries to be accomplished with the use of a deadly weapon or by use of physical force necessarily likely to cause great bodily injury. (See People v. Lewis (2004) 120 Cal.App.4th 882, 887-888 [battery and aggravated battery are not lesser included offenses of torture].) Thus it is possible to commit torture without necessarily committing an aggravated assault. Such a situation, though perhaps uncommon, may exist when a person with the intent to inflict cruel or extreme pain withholds food or water to starve a person. Likewise, one can imagine a torture scenario where a person is subjected to deafening noise that ultimately damages or destroys hearing. In neither of these situations has the torturer assaulted the victim with a weapon or physical force, yet intent to inflict cruel or extreme pain for revenge, extortion, persuasion, etc. and serious physical injury remain.
Further, nothing in count 2, which charged Endita " unlawfully and with the intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion and for a sadistic purpose, inflict[ed] great bodily injury . . . upon [Juana] . . . ," established Endita used a weapon or force or violence against Juana to accomplish
the torture.[8] Accordingly, aggravated assault is not a lesser included offense of torture under either the elements test or the accusatory pleading test.
As to Endita's additional contention the aggravated assault conviction must be reversed because the assault with intent to commit rape and the attempted rape convictions included enhancement allegations for sentencing purposes which contain all the elements of that count 7 offense, it is preserved and rejected based on current law. (Wolcott, supra, 34 Cal.3d at p. 101; Auto Equity Sales, Inc., supra, 57 Cal.2d at p. 456.)
In conclusion, the aggravated assault conviction is not necessarily included within the aggravated mayhem, torture, or the attempted rape and assault with intent to commit rape convictions. We therefore only reverse the convictions on counts 3 and 4 and direct the court to strike the stayed terms imposed for those convictions.
DISPOSITION
The count 3 and 4 convictions are reversed and the remaining convictions (counts 1, 2, 5, 6, 7 & 8) are affirmed. The Superior Court is directed to amend the abstract of
judgment to reflect such reversals and to forward a copy of the amended abstract to the Department of Corrections.
HUFFMAN, J.
I CONCUR:
McCONNELL, P. J.
McDONALD, J., concurring and dissenting.
I concur in the majority opinion except for its conclusion the evidence is sufficient to support Endita's conviction for torture (Pen. Code, § 206).
In my view the evidence in the record is insufficient to support the jury finding of torture and I dissent from that portion of the majority opinion for the reasons set forth by Justice McIntyre in People v. Pre (2004) 117 Cal.App.4th 413, 425, 426 (dis. opn. of McIntyre, J.). The torture conviction should be reversed.
McDONALD, Acting P. J.
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[1] All statutory references are to the Penal Code unless otherwise specified.
[2] Evidence Code section 352 provides: " The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
[3] A jury could have reasonably inferred Endita harbored an intent to rape Juana from the following evidence: he determined she was alone before he entered the room, he used a ruse to get close to her, he threatened her with a knife, gestured for her to be quiet and obey his commands, he beat and slashed her, he jumped on top of her when he pushed her onto the couch, he carried a condom in his jacket and five pornographic magazines in a bag, he did not demand any money or property from her, he took nothing that belonged to her or anyone else from the room when he left, and at the time of his arrest he stated he had been on drugs at the time of the incident which he conceded often made him crave sex. Because this evidence suggests Endita had the intent to rape or commit some sexual act upon Juana, his reliance on People v. Guerrero (1976) 16 Cal.3d 719 to argue there is no evidence whatever to show such intent is misplaced.
[4] With regard to assault with intent to commit mayhem, CALJIC No. 9.09 provides in pertinent part: " Every person who assaults another with the specific intent to commit [mayhem] is guilty of the crime of assault to commit [mayhem] in violation of [section] 220. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person was assaulted; and [¶] 2. The assault was made with the specific intent to commit [mayhem]. [¶] The crime of assault with intent to commit [mayhem] is complete if an assault is made and a
