P. v. Maui

Filed 11/28/05 P. v. Maui CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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THE PEOPLE, Plaintiff and Respondent, v. PUNI LAOFIE MAUI, Defendant and Appellant.

C048168 (Super. Ct. No. 04F02765)

A jury convicted defendant Puni Laofie Maui of mayhem (Pen. Code, § 203‑‑count one),^[1] battery with serious bodily injury (§ 243, subd. (d)‑‑count two), and assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)‑‑count three), which included a finding he had personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court sentenced him to an aggregate term of five years in state prison.

On appeal, defendant contends his convictions for battery with serious bodily injury and assault by means of force likely to produce great bodily injury must be reversed because they are lesser included offenses of mayhem. We agree only that defendant’s conviction for battery with serious bodily injury must be reversed and shall otherwise affirm the judgment.

FACTUAL BACKGROUND

On February 27, 2004, Mickey Ramirez was inside a convenience store on Stockton Boulevard paying for gasoline for his vehicle. Ramirez was approached by defendant, who identified himself as a Crip gang member and told Ramirez to remove the red shirt he was wearing. When Ramirez refused, defendant “put[] his hands on [Ramirez].” Ramirez backed up and told the store clerk to “get this guy off me.” Defendant hit Ramirez on his shoulders and head, causing Ramirez to pass out. After Ramirez fell to the floor, the store clerk saw defendant hitting and kicking Ramirez “[l]ots of times” with “full force.” Defendant then left the premises in a car that was waiting outside while the store clerk called 911.

When police arrived, Ramirez’s face was covered in blood and he appeared “severely beaten up.” He was taken by ambulance to the hospital, where he remained for almost one month. According to the emergency doctor, Ramirez suffered “the most severe facial types of fracture[s] that [the hospital] ever see[s].” “[A]ll [of Ramirez’s] facial bones were broken off of the rest of the skull . . . and [were] floating freely.” Ramirez underwent facial reconstructive surgery, which included the installation of nine metal plates to stabilize the fractures.

At the time of trial, Ramirez was still experiencing the effects of defendant’s attack. Many of his teeth were missing. The nerves in his mouth were damaged, which caused him to “slobber a lot” when talking. He was unable to “grip anything.” He had glaucoma and needed to tilt his head to align his eyes in order to view objects in front of him. As a result of his impaired vision, he lost his job as a driver for “MediCab.”

DISCUSSION

Defendant contends his convictions for battery with serious bodily injury and assault by means of force likely to produce great bodily injury must be reversed because they are lesser included offenses of mayhem.

A person cannot be convicted of both a greater and lesser included offense. (People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Pearson (1986) 42 Cal.3d 351, 355.) The test for determining whether an offense is a lesser included offense for purposes of this rule is whether one offense cannot be committed without necessarily committing the other. (Ibid.) We look to the statutory elements of the offenses and unless all of the statutorily required elements of the lesser offense are also statutorily required elements of the greater offense, it is not a lesser included offense for this purpose. (People v. Scheidt (1991) 231 Cal.App.3d 162, 169-171.)

The People concede that battery with serious bodily injury is a lesser included offense of mayhem and, therefore, defendant’s conviction for count two must be reversed. We agree.

Simple mayhem is defined in section 203, which provides: “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.”

Battery with serious bodily injury is defined as “a battery . . . committed against any person and serious bodily injury is inflicted on the person.” (§ 243, subd. (d).) Battery is defined as “any willful and unlawful use of force or violence upon the person of another.” (§ 242.) Serious bodily injury is defined as “including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” (§ 243, subd. (f)(4).)

Based on the above statutory definitions of these crimes, the elements of mayhem necessarily include the elements of battery with serious bodily harm. (People v. Ausbie (2004) 123 Cal.App.4th 855, 859 (Ausbie).) Reversal of count two is therefore required.^[2]

We turn then to defendant’s remaining contention that assault with force likely to produce great bodily injury is a lesser included offense of mayhem, requiring reversal of count three. Recently, the Fifth Appellate District of the Court of Appeal resolved this issue adversely to defendant’s position, reasoning, “it requires no prescience to imagine a situation in which an assailant might maliciously--that is, with an intent to vex, annoy, or injure another--use force less than that likely to produce great bodily injury but nonetheless produce a disfiguring result.” (Ausbie, supra, 123 Cal.App.4th at p. 862.)

For a contrary conclusion, defendant relies on People v. De Angelis (1979) 97 Cal.App.3d 837. That case is factually distinguishable, as the Ausbie court explained. “[De Angelis’s] holding is limited: ‘An assault is necessarily included in mayhem where the assault is a continuing event and the mayhem results during the course thereof. The lesser merges into the major.’ ([De Angelis,] at p. 841.) Though the De Angelis defendant had been charged with mayhem and with assault on the same victim by means of force likely to produce great bodily injury, the jury convicted De Angelis only of mayhem and the lesser offense of simple assault. Thus, the court’s holding that assault is a lesser offense subsumed in the offense of mayhem (see also People v. McKelvy (1987) 194 Cal.App.3d 694, 702; People v. Krupa (1944) 64 Cal.App.2d 592, 597) does not also mean that assault by means of force likely to produce great bodily injury is so subsumed.” (Ausbie, supra, 123 Cal.App.4th at p. 860.)^[3]

Finally, even applying the accusatory pleading test in this case does not assist defendant. This 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.”’” (People v. Lopez (1998) 19 Cal.4th 282, 288-289.)

We begin by examining the offense of mayhem as pleaded in count one. (People v. Montoya (2004) 33 Cal.4th 1031, 1036 [only the pleading for the greater offense is considered].) Here, the felony complaint, which was deemed an information, alleged in count one: “[Defendant] . . . did commit a felony[,] namely: A violation of Section 203 of the Penal Code of the State of California, in that said defendant did unlawfully, and maliciously deprive Mickey Lee Ramirez, a human being, of a member of his/her body, to wit, eye/vision and facial bones, and disable, disfigure, and render said eye/vision and facial bones useless.” (Emphasis omitted.)

“There is no allegation that the disfiguring or disabling injury was accomplished by means of, or even that it was the result of, force likely to produce great bodily injury. Thus, under either test the aggravated assault [i.e., assault with force likely to produce great bodily injury] is not necessarily included within the offense of mayhem.” (Ausbie, supra, 123 Cal.App.4th at p. 863.)

DISPOSITION

Defendant’s conviction for battery with serious bodily injury (§ 243, subd. (d)‑‑count two) is reversed. The trial court is directed to amend the abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

RAYE , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] This will not affect defendant’s five-year prison sentence, as his punishment for battery with serious bodily injury was stayed pursuant to section 654.

^[3] In his reply brief, defendant alleges error in the Ausbie court’s synopsis of the facts of De Angelis and points to what he believes is a “close reading of De Angeles [sic],” quoting from the “summary” of the case. The summary has no precedential value because it is not part of the court’s opinion. It is written by a legal publishing company.