P. v. Kakish

Filed 11/30/05 P. v. Kakish CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. TAREQ HANNA KAKISH, Defendant and Appellant.

E035819 (Super.Ct.No. RIF109895) O P I N I O N

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed in part and reversed in part.

Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci, Shari A. Lawson and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Defendant was charged with the willful, deliberate, and premeditated attempted murder of his father, Hanna Kakish (Hanna). (Pen. Code, §§ 664 & 187;^[1] count 1.) It was further alleged that defendant personally inflicted great bodily injury on Hanna in the commission of the attempted murder. (§ 12022.7, subd. (a).) An amended information added two more felony charges, namely, torture (§ 206; count 2) and aggravated mayhem (§ 205; count 3).

A jury convicted defendant of the lesser included offense of attempted voluntary manslaughter in count 1 (§§ 664 & 192, subd. (a)), found the great bodily injury allegation true, and found defendant guilty as charged of torture and aggravated mayhem. The trial court declared count 2 (torture) the principal count and sentenced defendant to seven years to life. Additional terms were imposed but stayed on counts 1 and 3 and the great bodily injury enhancement.^[2] (§ 654.)

Defendant appeals. He contends that: (1) the trial court erroneously instructed the jury that attempted voluntary manslaughter could be committed with either intent to kill or in conscious disregard for human life; (2) insufficient evidence supports his torture and aggravated mayhem convictions; (3) the trial court erroneously failed to instruct the jury sua sponte that battery with serious bodily injury is a lesser included offense of aggravated mayhem; and (4) the imposition of the upper term on count 1, based on facts not found by a jury, violated his constitutional right to a jury trial under Blakely v. Washington (2004) 524 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely).

The People concede, and we agree, that the trial court erroneously instructed the jury that attempted voluntary manslaughter could be committed in conscious disregard for human life. We conclude that this instructional error was not harmless beyond a reasonable doubt. Based on the evidence and the instructions as a whole, it is reasonably possible that the jury would not have convicted defendant of attempted voluntary manslaughter had it been properly instructed that the offense requires an intent to kill.

We further conclude, however, that substantial evidence supports defendant’s torture and aggravated mayhem convictions, and that any error in failing to instruct sua sponte on battery with serious bodily injury was harmless.

Accordingly, we reverse defendant’s attempted voluntary manslaughter conviction and great bodily injury enhancement in count 1, and we affirm defendant’s torture and aggravated mayhem convictions in counts 2 and 3.

FACTS

A. Prosecution

On May 1, 2003, about 11:00 a.m., Hanna visited the apartment of Lilia Pinto, the manager of an apartment complex in Corona, to pay the rent on defendant’s apartment. Defendant lived in apartment 61. Pinto said that Hanna “want[ed] to pay for [15] days because he wanted to give notice for the [30] days, so that [his son] would leave.” Pinto explained that Hanna would have to give 30 days’ notice and pay for 30 days’ rent. Hanna paid for 30 days’ rent, stayed for awhile, and left Pinto’s apartment about 12:00 p.m.

Kellie Stout lived in apartment 59, next door to and facing defendant’s apartment. The two apartments also shared a common wall. At approximately 12:00 p.m., Stout was at home with a friend, Carlos Perez. Stout heard a knock on defendant’s apartment door and a name called out. She believed the person at the door was defendant’s father. The door to defendant’s apartment opened. After a few minutes of silence, Stout heard a loud argument, primarily in a foreign language. Stout and Perez heard the younger of the two voices say, in English, “I made you. Fuck you. I made you” or “I made you who you are.”

A short time later, Stout heard the sound of someone punching another so severely that she felt compelled to call 911. After explaining the situation, Stout told the 911 dispatcher that the fighting had stopped and she believed defendant’s father had left, so no emergency personnel responded to her 911 call. About five to ten minutes after the fighting stopped, Stout saw defendant walk out of his apartment, walk downstairs, look back and forth for a minute or so, then come back to his apartment. A few minutes later, he did the same thing. Stout did not see any fighting; she only heard the argument.

After the argument began, Perez watched the altercation through the front window of Stout’s apartment. The front door of defendant’s apartment was open, and he could see inside. Perez saw a punch thrown and saw the older man fall to the floor. He never saw the older man throw a punch, threaten the younger man, or put up any resistance. Then he saw the younger man straddle the older man and hit him “full power” with his right hand, 15 to 20 times. Then the younger man kicked the older man “really hard” in the side of the head, more than 10 times. The younger man appeared to be wearing hiking boots. The younger man then walked to the other side of the older man and stomped on his face “hard” with his foot, more than 10 times. Perez told an officer that, after the attack was over, the younger man appeared calm, as if nothing had happened. Perez testified that defendant looked like the younger man but he “couldn’t be [100] percent sure.”

Defendant placed a 911 call at approximately 1:52 p.m. A tape of the 911 call was played at trial and a transcript of the call was distributed to the jury. Defendant told the dispatcher he had an “emergency situation here.” He said his father walked into the house while he was asleep, or “bum rushed the house.” He said he thought his father was an intruder, so he beat him with his fists and elbows. He said his father, who was in his 60’s, was on the floor, was bleeding and unconscious, and appeared to be having seizures. He said he was afraid to touch his father, and repeatedly asked whether paramedics would be sent. The words “groan in the background” are interspersed throughout the transcript. The dispatcher could hear Hanna moaning in the background, and was attempting to ensure that he was able to breathe.

Captain Mark Wilde, a firefighter with 20 years’ experience, went to defendant’s apartment to provide medical aid. He said that, from his years of experience, he was “pretty disturbed” by Hanna’s condition. Hanna was lying on the ground and appeared to be in extremely critical condition. His face was “extremely swollen from what appeared to be multiple hits of some sort.” After completing his duties, Wilde found defendant outside the apartment sitting on the steps. Defendant told Wilde that he was a trained fighter and that his hands were registered as lethal weapons. He did not appear to be excited or upset and showed “[a]bsolutely no remorse.” Wilde did not observe any injuries on defendant.

Detective Jay Stayner arrived at defendant’s apartment at approximately 2:00 p.m. to 2:15 p.m., after Hanna had been taken away, but while defendant was still there. He saw large red stains on the living room floor which appeared to be consistent with blood. He also saw that defendant had no injuries to his face, chest, stomach or legs, but his right hand and knuckle area were swollen and bruised, his elbow had several small cuts on it, and there appeared to be blood stains on the right lower leg of the sweat pants he was wearing. Defendant was barefoot, and Stayner did not recover any hiking boots or other shoes. Paramedics had put defendant’s arm in a sling because he was complaining of pain. Stayner also confirmed that Stout dialed 911 at 12:03 p.m.

Daniel Verdugo, a forensic technician, also investigated the crime scene on May 1, 2003. There was “pooled blood’ in the living room area, and blood on towels located in different areas of the apartment. The television and some glasses also had blood on them. Verdugo analyzed blood splatter evidence on the carpet and an adjoining wall, and concluded that the stains were the result of a medium velocity impact. A medium velocity impact pattern is consistent with spattering resulting from the strike of a hand, or kicking a person in the head with a foot. The distance between the area of the main pool of blood and the spattering on the wall was approximately five feet.

Defendant’s brother, Khalid Kakish (Khalid), testified that defendant and their father Hanna frequently argued, sometimes heatedly. They sometimes conversed in Arabic. Khalid went to see Hanna in the hospital in May 2003, but did not recognize him because he was “pretty swollen all over.” He continued seeing Hanna approximately three times a month. Hanna was still in a comatose state at the time of trial in March 2004. Khalid said that Hanna sometimes laughs and cries and knows when people are present, but does not speak. Khalid also testified about a 1997 incident involving violence between defendant and Hanna. Defendant admitted to Khalid that he hit Hanna, causing injuries to his nose and face which required medical attention. In 1997, Khalid saw that Hanna’s nose was bandaged and that he had stitches under his eye.

Christian Surgent, a police officer with the City of La Verne, testified that he was working on September 30, 1997, when he observed defendant and Hanna in the LaVerne police station. Defendant and Hanna left the station, then Hanna returned to the station with blood all over his face. Hanna told Surgent that defendant “did this” to him. Surgent identified a picture that he had taken of Hanna on that day showing a lot of blood on his face, neck, and shirt, and an injury under his eye about one and one-half to two inches long. Surgent also identified a picture he had taken of defendant’s right hand. The picture revealed an injury to one of his knuckles and some blood. Defendant admitted to Surgent that he hit his father and caused his injuries, after his father told him, “you’re no longer my son,” ordered him to get out of his car, and “back-handed him in the face.” Later, defendant told Surgent that he lied about his father striking him in the face.

Virginia Garrett, a physical medicine and rehabilitation physician who specialized in brain injury trauma, examined Hanna to determine the extent of his brain injuries and his prognosis. Garrett testified that Hanna suffered multiple areas of bleeding inside and outside his brain, severe bruising in and around his eyes, direct trauma to his right eye, and skull fractures. He also suffered internal swelling that cracked open the skin in his subcutaneous tissue. Garrett said this indicated “incredible amounts of injury, much more than I even normally see with a motor vehicle accident.” She also said the injuries to Hanna’s face and head were consistent with being kicked in the side of the head between 15 and 20 times, from being struck in the face very forcefully, or from being stomped in the face with a foot. The injuries were not consistent with the use of hands alone.

Garrett conducted a physical examination to determine Hanna’s ability to open his eyes, verbalize, and move, on a scale of three to fifteen. Three is the lowest level and fifteen is normal. Hanna’s score was “very low,” either a three or a six. Garrett said Hanna showed “no true response to anything [she] was doing,” and that he was “close” to a persistent vegetative state. His long-term prognosis was “he’s not going to wake up” from his coma. Garrett’s prognosis was based on current literature, the nature and extent of Hanna’s injuries, the fact he “had a period of time without enough oxygen,” and the fact he had not awakened during the first month of his coma. She said that if Hanna did wake up, he would still be “profoundly disabled.”

B. Defense

Officer Mark DeRuyter was called to impeach the testimony of Wilde. DeRuyter was outside defendant’s apartment complex on May 1, 2003, and heard a firefighter comment to defendant about Hanna’s injuries. In response, DeRuyter heard defendant say he was a trained fighter, but he did not hear defendant say that his hands were “licensed as deadly weapons.”

DISCUSSION

A. The Trial Court Erroneously Instructed That Attempted Voluntary Manslaughter Can Be Committed With Conscious Disregard for Life, and the Error Was Prejudicial Defendant contends the trial court prejudicially erred in instructing the jury that the lesser included offense of attempted voluntary manslaughter in count 1 could be committed if the perpetrator harbored either an intent to kill or acted with conscious disregard for life.^[3] The People agree, and so do we, that the jury was erroneously instructed because attempted voluntary manslaughter requires a specific intent to kill. Nevertheless, the People argue that the error was harmless. We disagree that the error was harmless.

The crime of voluntary manslaughter may be committed with either intent to kill or conscious disregard for life. (People v. Lasko (2000) 23 Cal.4th 101, 104; People v. Blakeley (2000) 23 Cal.4th 82, 91.) But the crime of attempted voluntary manslaughter requires an intent to kill; it cannot be committed with conscious disregard for life. (People v. Montes (2003) 112 Cal.App.4th 1543, 1549-1550; People v. Gutierrez (2003) 112 Cal.App.4th 704, 710.) Thus, the attempted voluntary manslaughter instruction was erroneous, because it allowed the jury to convict defendant if it found he acted with a conscious disregard for life, but not necessarily with intent to kill.

Reversal of defendant’s attempted voluntary manslaughter conviction is required unless the instructional error was harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 8-10 [119 S.Ct. 1827, 144 L.Ed.2d 35] [instruction that omits element of offense is subject to harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]]; People v. Lee (1987) 43 Cal.3d 666, 670, 674 [applying Chapman v. California, supra, standard of reversible error where jury was instructed that attempted murder may be based on intent to kill or implied malice; error “closely akin” to removing intent issue from jury’s consideration]; see also People v. Flood (1998) 18 Cal.4th 470, 502-504 and People v. Mower (2002) 28 Cal.4th 457, 484.) Here, it cannot be said that the error was harmless beyond a reasonable doubt.

First, the jury certainly could have reasonably inferred that defendant intended to kill his father. After Hanna fell to the floor, defendant straddled him and beat on his head and face “full power” 15 to 20 times. He then kicked Hanna “really hard” in the side of his head at least 10 times. Then he stomped on Hanna’s face “hard” at least 10 times, while wearing boots. After the attack, defendant was calm and acted as though nothing had happened. He allowed Hanna to lie on the floor, severely injured and barely able to breathe, for nearly two hours before he called 911. The brutal, vicious nature of defendant’s attack and defendant’s callous actions following the attack, strongly indicated that defendant intended to kill Hanna.

Additionally, neither the prosecutor nor defense counsel argued or even mentioned that defendant acted in conscious disregard for Hanna’s life. Instead, the prosecutor argued that defendant acted with premeditation and deliberation, and with intent to kill. Defense counsel argued that defendant did not act with premeditation or deliberation, or with intent to kill, but was at most guilty of battery with serious bodily injury, a general intent crime and a lesser included offense to count 1.

Still, we cannot say beyond a reasonable doubt that the instructional error did not affect the jury’s verdict. Although the jury could have reasonably inferred that defendant intended to kill Hanna, it just as well could have inferred that defendant acted only with conscious disregard of life. Defendant did not admit he intended to kill Hanna. Nor did he say anything that unequivocally and clearly indicated he intended to kill Hanna. Defendant’s actions before, during, and after the beating were consistent with both mental states. Reasonable people could have disagreed on whether defendant acted with intent to kill or conscious disregard for life.

Additionally, we cannot say that the instructional error was harmless based on the instructions as a whole. The jury was instructed that the charged offense of attempted murder requires “express malice aforethought, namely, a specific intent to kill,” and that the “acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to kill.” (CALJIC No. 8.66, italics added.) The jury was further instructed that the lesser offense of attempted voluntary manslaughter requires either an intent to kill or conscious disregard for life, and that the phrase “‘conscious disregard for life’” “means that an attempted killing results from the doing of an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his or her conduct endangers the life of another . . . .” (CALJIC No. 8.40.)

The jury rejected the charged offense of attempted murder in favor of the lesser offense of attempted voluntary manslaughter. In reaching this conclusion, it is reasonably possible that at least some of the jurors concluded that defendant did not act with intent to kill, but that the jurors agreed that defendant at least acted with conscious disregard for life. Thus, the instructional error on attempted voluntary manslaughter was not harmless beyond a reasonable doubt.

We acknowledge it is reasonably possible the jury concluded that defendant acted with intent to kill but in the heat of passion, and on this ground determined that he was guilty not of attempted murder but of attempted voluntary manslaughter. Even so, it remains reasonably possible that the jury found defendant guilty of attempted voluntary manslaughter, not because they concluded he acted with intent to kill and in the heat of passion, but because they concluded he acted with conscious disregard for life and not with intent to kill. The latter reasonable possibility compels us to conclude that the error in instructing the jury that attempted voluntary manslaughter may be committed in conscious disregard for life was not harmless beyond a reasonable doubt.

B. Substantial Evidence Supports Defendant’s Torture and Aggravated Mayhem Convictions

Defendant contends there was insufficient evidence that he had the specific intent required for the crimes of torture and aggravated mayhem, and that his convictions in counts 2 and 3 must therefore be reversed. We disagree on both counts.

1. Standard of Review

“‘“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] [¶] . . . But it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] . . . an appellate court may not substitute its judgment for that of the jury.”’ [Citation.]” (People v. Pre (2004) 117 Cal.App.4th 413, 421 (Pre).)

We “‘“‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’”’ [Citations.] . . . [Citations.] ‘Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.’ [Citation.] Convictions are seldom reversed based on insufficiency of the evidence.” (Pre, supra, 117 Cal.App.4th at p. 421.)

2. Torture

The crime of torture is defined in section 206. That statute provides that “[e]very 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 [s]ection 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.”

“‘As the statute states, torture has two elements: (1) a person inflicted great bodily injury upon the person of another, and (2) the person inflicting the injury did so with specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.’” (Pre, supra, 117 Cal.App.4th at p. 419, italics added.)^[4]

The crime of torture focuses on the mental state of the perpetrator, not the extent of the pain or injuries inflicted. (People v. Hale (1999) 75 Cal.App.4th 94, 108.) The perpetrator is not required to act with premeditation or deliberation, or intend to inflict prolonged pain. (People v. Aguilar (1997) 58 Cal.App.4th 1196, 1204-1206.) Rather, the perpetrator must intend to inflict cruel and extreme pain and for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.^[5] (People v. Jung (1999) 71 Cal.App.4th 1036, 1042-1043.) Section 206 was adopted to “fill[] a gap in existing law dealing with extremely violent and callous criminal conduct.” (People v. Barrera (1993) 14 Cal.App.4th 1555, 1573.)

“Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense. [Citations.] Intent to cause cruel or extreme pain can be established by the circumstances of the offense and other circumstantial evidence. [Citations.]” (Pre, supra, 117 Cal.App.4th at p. 420.) Still, the “‘[s]everity of a victim’s wounds is not necessarily determinative of intent to torture’ since ‘[s]evere wounds may be inflicted as a result of an explosion of violence [citations] or an “act of animal fury”’ rather than an intent to inflict pain for revenge, extortion, persuasion, or other sadistic purpose. [Citation.]” (Ibid., citing People v. Mincey (1992) 2 Cal.4th 408, 432, italics added.)

Defendant argues that the evidence showed that he beat his father in an “explosion of violence” or in an act of “animal fury,” and not with the intent to inflict cruel and extreme pain for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. We disagree.

Although the severity of a victim’s injuries is not necessarily determinative of the perpetrator’s intent to torture, it does not follow that “the nature of the victim’s wounds cannot as a matter of law be probative of intent. Intent is a state of mind. A defendant’s state of mind must, in the absence of the defendant’s own statements, be established by the circumstances surrounding the commission of the offense. [Citation.] The condition of the victim’s body may establish circumstantial evidence of the requisite intent.” (People v. Mincey, supra, 2 Cal.4th at p. 433.)

Here, the jury had ample basis to infer that defendant intended to inflict cruel and severe pain on Hanna. Defendant viciously and deliberately beat, kicked, and stomped on Hanna’s head and face numerous times while he lay helpless on the floor. And after the attack, defendant waited nearly two hours to call 911 while Hanna lay suffering and barely able to breath. Defendant also bragged that he was a “trained fighter” and that his hands were registered as lethal weapons. An attack this savage and deliberate cannot necessarily be explained or excused as “an explosion of violence” or act of “animal fury.” Rather, the jury could have reasonably inferred that this was a deliberate and cruel attack, intended to inflict extreme pain, suffering, and damage.

The evidence also showed that defendant attacked Hanna for revenge, because the attack occurred after defendant and Hanna apparently argued about Hanna’s refusal to continue paying defendant’s rent. The sheer viciousness of the attack, and the numerous blows inflicted, showed that defendant derived satisfaction from beating Hanna for the sadistic purpose of deriving satisfaction from inflicting pain.

3. Aggravated Mayhem

Defendant contends that insufficient evidence supports his aggravated mayhem conviction, also because he acted in “an explosion of violence” or with “animal fury” and not with specific intent to maim or disfigure. Again, we disagree.

Section 205 defines the crime of aggravated mayhem. Section 205 provides, in pertinent 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. For purposes of this section, it is not necessary to prove an intent to kill.” (Italics added.)^[6]

The crime of aggravated mayhem requires a specific intent to cause the maiming injury. (People v. Park (2003) 112 Cal.App.4th 61, 64.) Courts have held that “[e]vidence that shows no more than an ‘indiscriminate attack’ is insufficient to prove the required specific intent. [Citation.] ‘Furthermore, specific intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately.’” (Ibid., citing People v. Ferrell (1990) 218 Cal.App.3d 828, 835.)

Here, substantial evidence showed that defendant specifically intended to maim Hanna, and did not merely attack him indiscriminately. Indeed, defendant focused his attack on an extremely vulnerable portion of Hanna’s body, his head and face. Defendant repeatedly and viciously punched Hanna in the face, kicked him on the side of his head, and stomped on his head and face. He then waited nearly two hours to call 911, while Hanna lay suffering and barely able to breathe. This showed that defendant intended to maim and kill Hanna.

C. Any Error in Failing to Instruct Sua Sponte on Battery With Serious Bodily Injury as a Lesser Included Offense to Aggravated Mayhem in Count 3 Was Harmless

Defendant contends that the trial court erroneously failed to sua sponte instruct the jury on battery with serious bodily injury as a lesser included offense to aggravated mayhem in count 3. We conclude that any error in failing to give the lesser instruction was harmless under People v. Watson (1956) 46 Cal.2d 818, 836.

“Every person who willfully and unlawfully uses any force or violence upon the person of another resulting in the infliction of serious bodily injury is guilty of the crime of battery with serious bodily injury.” (CALJIC No. 9.12; § 243.) “[S]erious bodily injury” means “a serious impairment of physical condition, 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.” (CALJIC No. 912; § 243.) Battery with serious bodily injury is a general intent crime. (See People v. Atkins (2001) 25 Cal.4th 76, 85.)

Assuming without deciding that the trial court had a duty to instruct sua sponte on battery with serious bodily injury as a lesser included offense to aggravated mayhem in count 3, any error was harmless. (People v. Watson, supra, 46 Cal.2d at p. 826.) In order to have convicted defendant of battery with serious bodily injury, rather than aggravated mayhem, the jury would have had to conclude that defendant did not intend to inflict serious bodily injury on Hanna. But as discussed, the evidence that defendant intended to maim Hanna was very strong. Additionally, the jury was instructed on the lesser included offense of simple mayhem in count 3, and rejected it.^[7] Simple mayhem, like battery with serious bodily injury, is a general intent crime. (People v. Sekona (1994) 27 Cal.App.4th 443, 453.) It is thus not reasonably probable that the jury would have convicted defendant of the battery with serious bodily injury, rather than the charged offense of aggravated mayhem, if it had been instructed on the former offense.

D. Imposition of the Upper Term on Count 1

Defendant contends that the imposition of the upper term of five years six months on count 1 (attempted voluntary manslaughter), on the basis of facts not found true by a jury beyond a reasonable doubt, violated his constitutional right to a jury trial under Blakely. Because we reverse defendant’s conviction in count 1, we do not reach this contention.

DISPOSITION

Defendant’s conviction for attempted voluntary manslaughter in count 1 and the great bodily injury enhancement in count 1 are reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ McKinster

Acting P.J.

/s/ Richli

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The trial court imposed but stayed the upper term of five years six months on count 1 (attempted voluntary manslaughter), plus three years for the great bodily injury enhancement on count 1, and further imposed but stayed a seven-year-to-life term on count 3 (aggravated mayhem).

^[3] On attempted voluntary manslaughter, the jury was given a modified version of CALJIC No. 8.40 (Voluntary Manslaughter‑‑Defined), which read: “The crime of attempted voluntary manslaughter is a lesser offense under Count 1, attempted murder. [¶] Every person who unlawfully attempts to kill another human being without malice aforethought but either with an intent to kill, or with conscious disregard for human life, is guilty of attempted manslaughter in violation of . . . section 192, subdivision (a). [¶] There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion. [¶] The phrase, ‘conscious disregard for life,’ as used in this instruction, means that an attempted killing results from the doing of an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his or her conduct endangers the life of another and who acts with conscious disregard for life. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. There was an attempt to kill a human being; [¶] 2. The attempted killing was unlawful; and [¶] 3. The perpetrator of the attempted killing either intended to kill the alleged victim, or acted in conscious disregard for life; and [¶] 4. The perpetrator’s conduct resulted in the unlawful attempted killing. [¶] An attempted killing is unlawful, if it was neither justifiable nor excusable.” (Italics added.)

^[4] The jury was given CALJIC No. 9.90 (Torture), which read: “Defendant is accused in Count 2 of having committed the crime of torture in violation of . . . section 206. [¶] Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, or for any sadistic purpose, inflicts great bodily injury upon the person of another, is guilty of the crime of torture in violation of section 206 . . . . [¶] ‘Great bodily injury’ means a significant or substantial physical injury. [¶] The crime of torture does not require any proof that the perpetrator intended to kill the other person or the person upon whom the injury was inflicted suffered pain. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person inflicted great bodily injury upon the person of another; and 2. The person inflicting the injury did so with specific intent to cause cruel or extreme pain and suffering for the purpose of revenge or for any sadistic purpose.”

^[5] It has been stated that a “sadistic purpose” “is a term in common usage, having a relatively precise meaning, that is, the infliction of pain on another person for the purpose of experiencing pleasure.” (People v. Raley (1992) 2 Cal.4th 870, 901.) The term has been defined as “‘A form of satisfaction, commonly sexual, derived from inflicting harm on another.’” (Id. at p. 901, fn. 4, quoting Black’s Law Dict. (6th ed. 1990) p. 1336.) A “sadistic purpose” is not necessarily sexual in nature. (People v. Aguilar, supra, 58 Cal.App.4th at p. 1203.) Nor, in our view, is the term limited to experiencing pleasure. Rather, it is also commonly understood as connoting deliberate and wanton cruelty.

^[6] The jury was given CALJIC No. 9.32 (Aggravated Mayhem), which read: “The defendant is accused in Count 3 of having committed the crime of aggravated mayhem in violation of section 205 . . . . [¶] Every person who 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, is guilty of the crime of aggravated mayhem in violation of . . . section 205. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. One person intentionally and unlawfully caused another person to sustain permanent disability or disfigurement or deprived another person of a limb, organ, or member of his or her body; [¶] 2. The person who inflicted the injury did so with the specific intent permanently to disable, disfigure, or to deprive the other person of a limb, organ or member of his or her body; [¶] 3. The person who inflicted the injury did so maliciously, that is, with an unlawful intent to vex, annoy, or injure another person; and [¶] 4. That person engaged in the conduct under circumstances which demonstrated his [or] her extreme indifference to the physical or psychological well-being of the person subsequently injured. [¶] An intent to kill is not an element of the crime.”

^[7] On simple mayhem, the jury was given CALJIC No. 9.30 (Mayhem--Defined--Necessary Elements), which read: “The crime of simple mayhem is a lesser offense under Count 3. [¶] Every person who unlawfully and maliciously deprives a human being of a member of his [or] her body, or disables, permanently disfigures, or renders it useless, or who cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of the crime of mayhem in violation of . . . section 203. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. One person unlawfully and by means of physical force deprived a human being of a member of his [or] her body or, disabled, permanently disfigured, or rendered it useless; [¶] 2. The person who committed the act causing the bodily harm, did so maliciously, that is, with an unlawful intent to vex, annoy, or injure another person. . . .”