Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 2243495
RIVERA, J.
Defendant Qi Xin Kuang appeals a judgment entered upon a jury verdict finding him guilty of aggravated mayhem (Pen. Code, § 205), mayhem (§ 203), assault with a deadly weapon (§ 245, subd. (a)(1)), attempted voluntary manslaughter (§§ 192 & 664), and battery with serious bodily injury (§ 243, subd. (d)). He contends the evidence is insufficient to support a finding that he committed aggravated mayhem, and that the trial court failed to exercise its discretion in ruling on his motion to continue the trial and to substitute new counsel. We affirm.
All statutory references are to the Penal Code.
I. BACKGROUND
Defendant and his wife, Xue (or Joyce) Cao, married in China and thereafter moved to New York. In April 2005, Cao became acquainted with Kwan Ki, who was her employer at the time. Defendant suspected the two were having an affair. Cao stopped working for Ki, but the two continued their relationship off-and-on for several months. In August 2005, defendant told Ki to stop seeing Cao or he would “do some bad thing” to him.
Defendant and Cao moved to San Francisco in October 2005. She contacted Ki about a week and a-half later, and Ki went to visit her on November 17, 2005. They saw each other on November 17, 18, and 19, spending time in Ki’s hotel room and shopping.
Ki testified that although his relationship with Cao was a “dating” relationship in New York, it did not become sexual until his visit to San Francisco.
Late on the evening of November 19, 2005, Cao called Ki, who was in his hotel room, and told him that defendant knew Ki was in San Francisco and wanted to speak to him. Ki went to the apartment defendant and Cao shared. As the three sat and spoke, defendant asked Ki, “Since you love Joyce so much, why don’t you just be with her?” He asked Ki for $40,000, saying he would divorce Joyce and go back to China to get a new wife. Ki said he did not have that much cash. The conversation continued for about two hours, and defendant appeared calm. Ki asked defendant to leave the room so he could speak with Cao about what she wanted to do. Cao told Ki he should go back to his hotel, and she accompanied him out of the apartment and down the stairs.
Defendant called after them, “Why don’t we just talk more, why don’t you come back up and we talk more?” His voice sounded calm. Ki and Cao went back upstairs, and Ki sat down. Defendant came into the room, his hand behind his back. He charged at Ki with a butcher knife in his hand and began striking Ki with the knife. Ki lay on the floor, trying to protect his chest with his hands and knees as defendant struck and “chopp[ed]” him with the knife. Two of Ki’s fingers were severed, and he suffered injuries “from head to foot.” The skin on his scalp from the crown, through the ear, to the neck, was cut down to the bone and lay like a flap on his shoulder, and he was cut to the bone on his arms and legs.
As defendant attacked Ki, he said that “there’s no free meal, everybody [has] to pay a penalty for what they did.” Cao tried to protect Ki, getting between him and defendant, and defendant stopped striking Ki. Someone carried Ki outside and put him on the street. His severed fingers were placed beside him.
Firefighters came to the scene, and saw defendant there, yelling. A police officer asked defendant what had happened, and defendant replied, “I chopped him up.” The officer asked again what had happened, and defendant said, “I chopped him up. He was talking to my wife.”
Ki’s fingers were reattached, but regained only limited functioning. At the time of trial, he had scars on his right and left cheeks and his scalp as a result of the attack. He had a scar on his right hand, extending across the palm of his hand, and a scar on his right forearm. His right thumb and left forearm had been fractured. He had three scars on the back of his left hand, and one on his left wrist, and further scars on his left forearm and upper arm, legs, and left ankle. He had had skin grafts on his arm and leg, and had lost muscle tissue on his left arm.
Cao suffered lacerations to her head and a fracture to her skull, which caused a piece of bone to project into the brain cavity. She had a wound on her left arm, which required sutures to close it, and bruises on her arm.
Defendant testified in his own defense as follows: He went out to play Mahjong after dinner on the evening of November 19, 2005. When he returned home in the early morning hours, he saw Ki holding Cao by the arms and shaking her. He heard Ki telling Cao to go back to New York with him, and Cao refusing to do so. Defendant testified that he told Ki to let Cao go and approached to pull him away. The two men each took hold of one of Cao’s arms, and Ki grabbed a knife. Ki charged toward defendant and struck him with the knife. Defendant took the knife from Ki and began swinging the knife and screaming. He was not aware that he was striking Ki, but stopped when he saw blood on Cao’s body. He told Cao to call the police, and carried Ki downstairs.
The jury found defendant not guilty of attempted murder of Ki (§§ 187 & 664), but guilty of the lesser offense of attempted voluntary manslaughter (§§ 192 & 664). It found him guilty of both mayhem (§ 203), and aggravated mayhem (§ 205) against Ki, guilty of assault against Ki with a deadly weapon (§ 245, subd. (a)(1)), and not guilty of torture of Ki (§ 206), but guilty of the lesser offense of battery with serious bodily injury (§ 243, subd. (d)). It found him not guilty of inflicting traumatic injury on a spouse (§ 273.5, subd. (a)), and not guilty of the lesser offense of battery on a spouse (§ 243, subd. (e)(1)). The trial court imposed a sentence of life in prison with the possibility of parole for the aggravated mayhem count, and stayed the sentences on the remaining counts pursuant to section 654.
II. DISCUSSION
A. Sufficiency of Evidence of Aggravated Mayhem
Defendant contends there is insufficient evidence to show he committed the crime of aggravated mayhem. In reviewing this claim, we decide whether “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Hatch (2000) 22 Cal.4th 260, 272.)
Aggravated mayhem (§ 205) “requires proof the defendant specifically intended to maim—to cause a permanent disability or disfigurement. [Citation.] A jury may not find specific intent ‘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.’ [Citation.] ‘A jury may infer a defendant’s specific intent from the circumstances attending the attack, the manner in which it is done, and the means used, among other factors.’ [Citation.] ‘[E]vidence of a “controlled and directed” attack or an attack of “focused or limited scope” may provide substantial evidence of’ a specific intent to maim. [Citations.]” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831 (Szadziewicz).)
Section 205 provides: “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. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole.”
Defendant contends the evidence shows only that he committed an indiscriminate attack in the heat of passion, not that he acted with the specific intent to maim Ki. We disagree. The jury could reasonably infer from the circumstances and nature of the attack that defendant’s actions reflected not merely indiscriminate violence, but an intent to maim. Defendant asked Ki and Cao to return upstairs and approached Ki with the butcher knife hidden behind his back. As he attacked Ki, he said that Ki “ha[d] to pay a penalty” for what he had done. Afterwards, he told an officer that he had “chopped [Ki] up.” These circumstances could lead the jury to conclude that defendant intended to maim Ki. Moreover, in attacking Ki, not only did defendant slash his face, but he completely severed two of Ki’s fingers. Such an injury suggests not an indiscriminate attack, but a focused one, and that defendant intended to disfigure Ki and deprive him of the use of his hand.
These facts distinguish this case from People v. Sears (1965) 62 Cal.2d 737, 745, overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17, in which our Supreme Court concluded that an attack in which the defendant hit his stepdaughter several times with a steel pipe, cutting her nose and lip, indicated no more than an indiscriminate attack, and did not show the specific intent to commit mayhem. These blows occurred when his stepdaughter tried to intervene in a struggle defendant was having with his wife, and nothing in the attack indicated the blows were directed at maiming the stepdaughter. (Sears, supra, 62 Cal.2d at pp. 741, 745.) Shortly afterwards, our Supreme Court in People v. Anderson (1965) 63 Cal.2d 351, 356, 358-359, concluded that an attack in which the defendant cut the victim 41 times over her entire body in the course of killing her indicated “an indiscriminate attack,” but did not show a specific intent to commit mayhem. Likewise, in People v. Lee (1990) 220 Cal.App.3d 320, 323-327, the defendant, in an unprovoked attack, punched the victim in the nose, eye, and mouth, and kicked him at least twice. The court of appeal concluded the evidence did not support a conviction of aggravated mayhem because it showed “no more than a sudden, indiscriminate, and unfocused battering of [the victim’s] body.” (Id. at p. 326.) In none of these cases did the defendant cause grave injury in a manner directed specifically at a portion of the victim’s body. Here, on the other hand, although defendant attacked Ki over virtually his entire body, there was evidence supporting an inference that he had the specific intent to maim Ki. And as we have discussed, the jury could reasonably conclude that two fingers were not severed by chance in the course of an indiscriminate attack, but that their amputation was the result of a deliberate effort to disfigure and maim Ki.
The question in Sears was whether the court should instruct the jury on felony murder mayhem. (Sears, supra, 62 Cal.2d at p. 745.) The stepdaughter died of a knife wound. (Id. at p. 741.)
Defendant points to cases in which the courts concluded that the focused nature of an attack was sufficient to support a finding of specific intent, and argues that the facts here show instead a “wanton assault” that does not support such a finding. For instance, in People v. Ferrell (1990) 218 Cal.App.3d 828, 835-836, the court noted that a single shot to the neck was a directed and controlled attack which, if not fatal, was likely to disable the victim permanently, and concluded the jury could properly infer that the defendant intended to kill the victim, or, if unsuccessful, to disable her permanently. In People v. Park (2003) 112 Cal.App.4th 61, 69-70, the court concluded that evidence that the defendant threatened the victim, retrieved a knife sharpener, and confronted him outside a restaurant and asked hostile questions before attacking him with the knife sharpener indicated that the attack was “the product of deliberation and planning, not an explosion of indiscriminate violence,” suggesting that the defendant intended to maim. Furthermore, the defendant directed his attack at the victim’s head, bringing the weapon down from behind his head, thereby giving his blows more force, and stopped once he had maimed the victim’s face. (Id. at p. 69.) In People v. Quintero (2006) 135 Cal.App.4th 1152, 1163, the defendant initially attacked the victim’s head, using deliberate uppercut motions to slash his face and holding him by the hair, and stopped his attack once he had severely maimed the victim’s face. The injuries to the victim’s arms and hands occurred as the victim tried to protect his face. The court concluded that from these facts, the jury could conclude that the attack was guided by the specific intent of inflicting serious injury on the victim’s face and head. In People v. Campbell (1987) 193 Cal.App.3d 1653, 1668-1669, the defendant focused the attack on the victim’s face and head, rather than randomly attacking her body.
We recognize that the attacks in these cases were more limited in scope than that at issue here. However, a broader attack need not negate an inference that the defendant acted with the intent to disfigure the victim. (See Szadziewicz, supra, 161 Cal.App.4th at p. 832.) Here, although Ki’s head and hands were not the sole focus of defendant’s violence, the jury could reasonably conclude that his actions, in conjunction with the surrounding circumstances, showed that he acted with the intent to maim or disfigure Ki.
Defendant suggests, however, that the jury must have reached its verdict out of confusion about the distinction between the intent to kill Ki and the intent to maim or disfigure him—that is, that the jury believed that defendant’s intent to kill itself established the intent to maim. In support of this argument, he points out that in closing argument, the prosecutor told the jury that, with respect to the intent requirement for aggravated mayhem, “Well, that goes right back to attempted murder because, yeah, he was trying to deprive Mr. Ki of his entire body. He was trying to kill him. He was trying to separate Mr. Ki’s body from his soul and put an end to his life. So, that’s established by the defendant’s actions.” Later, during deliberations, the jury asked the court, “If someone intends to kill another person, does that also mean the first person intends to disable or disfigure the other person?” At defense counsel’s suggestion, the jury was reminded of CALCRIM No. 3515, which instructed the jury that it should consider each count separately and return a separate verdict for each one. Defendant also contends that the verdicts themselves are inconsistent and that this inconsistency is further evidence of “the jury’s mistaken merg[er] of the specific intent to kill and [the intent] to permanently maim.” Defendant does not raise these points as separate grounds for reversal, but rather to explain how the jury might have come to convict defendant of aggravated mayhem despite the lack of sufficient evidence of the specific intent to maim. We have already concluded that the nature and circumstances of the attack provide sufficient evidence of the requisite intent. Accordingly, we reject this argument.
Defendant raised no objection to this argument.
For this point, he notes that the jury found him guilty of attempted voluntary manslaughter rather than attempted murder (suggesting it concluded he acted with the intent to kill but in the heat of passion), and that it found him not guilty of torture (suggesting it must have found defendant did not intend to cause Ki extreme pain and suffering). These findings, he contends, were inconsistent with a conclusion that he intended to disfigure or maim Ki, unless the jury believed the intent to kill itself satisfied section 205’s intent requirement. Even assuming the verdicts are inconsistent, a point we do not decide, we note that our Supreme Court has stated that the existence of inconsistent verdicts does not imply that the jury must have been confused, but may show instead “no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict.” (People v. Lewis (2001) 25 Cal.4th 610, 656.)
B. Denial of Continuance to Allow New Counsel to Enter Case
Defendant contends the trial court denied him his right to counsel by failing to exercise its discretion in ruling on his request to continue the trial in order to allow him to substitute retained counsel for his public defender.
The crimes at issue took place in the early morning hours of November 20, 2005. The complaint was filed on November 23, 2005; the preliminary hearing took place on October 2, 2006; and the information was filed on October 13, 2006. Defendant moved successfully to continue the trial on January 12, 2007. He again moved to continue the trial on February 27, 2007. The People opposed the motion, “based on the age of this case and the court’s previous continuance of the trial on a defense motion.” The trial court granted defendant’s motion, continuing the trial to June 8, 2007. The People requested a 10-day continuance on June 6, 2007, to accommodate the prosecutor’s plans to be absent from the office to allow him to visit his parents on their 55th wedding anniversary. The court continued the trial to June 22, 2007. It appears that no courtroom was available on that date, the People withdrew their time waiver. On July 3, 2007, the court continued the trial to October 26, 2007.
Invoking their right to a speedy trial (Cal. Const., art. 1, § 29), the People petitioned this court for a writ of mandate. On September 21, 2007, this court issued a peremptory writ of mandate commanding the trial court to proceed with the case without further delay except as reasonably necessary to obtain the attendance of witnesses. Trial was again set for October 26, 2007.
On October 23, 2007—three days before trial was scheduled to begin—defendant filed a motion to substitute retained counsel, Stuart Hanlon, for the public defender, and to continue the trial to allow Hanlon to prepare. Hanlon’s attached declaration indicated that he was in trial at the time, and that he requested a trial date of November 20, 2007. He also explained that defendant’s family had tried to hire him approximately four months earlier, but did not have the funds to do so, and that he had just been contacted by defendant’s family and told that they had been able to raise the necessary funds. The People opposed the motion.
Stuart Hanlon represents defendant on appeal.
In the course of the October 26, 2007, hearing on the motion, the court began by telling the parties that this court had commanded it to proceed to trial without delay, that the writ did not provide for substitution of counsel, and that it could not substitute Hanlon in as defendant’s counsel if he was not ready for trial almost immediately. Defendant argued that the writ did not preclude the trial court from continuing the trial in these circumstances, and indicated Hanlon would be available for trial in late January. The People argued that the case was already two years old, that the memory of witnesses might fade with the passage of time, and that defendant had waited too long to choose new counsel.
The court denied the motion, explaining its reasoning as follows: “[T]his case has been set for trial for a long time. It is literally two years old two days ago from the time the complaint was filed. Certainly the defendant’s family had, and I understand the financial issues of retaining counsel, two years in which to retain you or retain private counsel. For two years they chose not to do that and to do that basically three days before we’re set to go to trial is another issue that I’m taking into consideration here. The delay that has been caused. [¶] I’m also taking into consideration the Court of [Appeal’s] mandate to me to send... this case out to trial and luckily for [the prosecutor] or for the court[, w]e do have courts available that I can probably send this case out [ ] on Monday or Tuesday.... I need to get this case out[. T]he Court of Appeals [sic] told me I need to get the case out. This is on the eve of trial. And for whatever reason it may be, I am denying your motion.” After further argument, the trial court continued: “The Court of Appeals [sic] has told me to take this case out to trial. And as I said, I think I put my reasoning on the record, it’s not an absolute right. I think there’s been two years delay in getting private counsel. There’s been no change of circumstances in those two years. Ms. Wang is ready to go to trial. She’s a very competent attorney. There hasn’t been any factor.” After more argument, the court continued, “Maybe if I didn’t have the Court of Appeal telling me I had to get this case out I probably would have granted the motion. Maybe I’m reading the opinion wrong.”
“ ‘The right to the effective assistance of counsel “encompasses the right to retain counsel of one’s own choosing.” ’ [Citation.] Further, ‘due process of law comprises a right to appear and defend with retained counsel of one’s own choice.’ [Citations.]” (People v. Jeffers (1987) 188 Cal.App.3d 840, 849.) This right has certain limitations, however. “[A] defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of the trial. [Citations.] To put it another way, the right of a defendant to appear and defend with retained counsel of his own choice is not absolute [citation]; ‘it must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.’ [Citation.] It is likewise settled that it is within the sound discretion of the trial court to determine whether a defendant shall be granted a continuance to obtain a private counsel [citation]; that there is no mechanical test for deciding whether a denial of a continuance is so arbitrary as to violate due process but rather each case must be decided on its own facts [citations]; that the burden is on the defendant to establish an abuse of discretion; and that in the absence of showing an abuse, the reviewing court will not disturb the ruling of the trial court. [Citation.]” (People v. Blake (1980) 105 Cal.App.3d 619, 623-624; see also People v. Rhines (1982) 131 Cal.App.3d 498, 506.)
Defendant’s contention is not that the trial court abused its discretion in denying his request to continue the trial and substitute retained counsel, but that it failed to exercise its discretion based on its reading of this court’s writ of mandate. (See People v. Butcher (1969) 275 Cal.App.2d 63, 68 (Butcher) [failure to exercise discretion is error].) We reject this contention. In making its ruling, the court relied not only on the fact that the People had successfully sought writ relief based on their assertion of their right to a speedy trial, but also on the amount of time that had passed since the complaint was filed, defendant’s delay in retaining counsel, and the fact that the request was not made until the eve of trial and that there were no special circumstances justifying obtaining new counsel. Indeed, after referring to the writ, the court continued, “I think I put my reasoning on the record, it’s not an absolute right. I think there’s been two years delay in getting private counsel. There’s been no change of circumstances in those two years. Ms. Wang is ready to go to trial. She’s a very competent attorney.” (Italics added.) It appears to us that the trial court exercised its discretion.
This case is distinguishable from Butcher, supra, 275 Cal.App.2d 63. There, the defendant moved to continue his trial and to substitute private counsel for the public defender. The trial judge indicated he would be inclined to grant a one-week continuance, subject to “ ‘checking with the presiding judge.’ ” (Id. at p. 66.) After conferring with the presiding judge, however, the court stated that to grant either motion “ ‘would be contrary to the general principles of the presiding judge and the calendar department,’ ” and therefore denied the motions. (Id. at p. 67.) The Court of Appeal concluded the trial court had erred by failing to exercise discretion, noting that it was clear the trial judge thought the motions should be granted, that he denied them solely because of the “ ‘general principles’ ” of the presiding judge and calendar department, and that there was “no indication what these ‘general principles’ were, or whether they would in any manner tend to outweigh the several very cogent reasons advanced to grant the motions.” (Id. at p. 68.) Even if the court could be considered to have exercised its discretion, the Court of Appeal continued, it should have granted the motions based on several factors: The requested one-week continuance was brief, this was the defendant’s first and only application for a continuance, indicating he was not seeking to avoid trial; the district attorney’s office had been advised of the motions beforehand and had expressed no real opposition to a one-week continuance; the delay would not have inconvenienced the deputy district attorney or the prosecution witnesses; the deputy public defender who had been representing the defendant was not ready for trial; defendant already had privately retained counsel available; and nothing in the record indicated the continuance would interfere with the efficient administration of justice or that the court would not be just as able to accommodate the trial on the later date. (Id. at p. 69.)
Here, as we have explained, the trial court exercised its discretion. We see no abuse of that discretion. It does not appear that defendant acted diligently to seek retained counsel. (Compare People v. Courts (1985) 37 Cal.3d 784, 787, 791 [defendant who approached private counsel approximately a month and a-half after entering plea, then informed court of efforts at trial setting conference, acted diligently to obtain substitution of counsel].) This was defendant’s third request for a continuance. The delay was not simply the one week contemplated in Butcher, supra, 275 Cal.App.2d at page 69, but approximately three months. The People had withdrawn their waiver of time four months earlier. The history of the case indicated that courtrooms were not always available when a case was scheduled for trial. Counsel were prepared to proceed. Under the circumstances, it was reasonable for the trial court to deny defendant’s motion to substitute counsel and to continue the trial.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.