Opinion
A152779
08-06-2018
THE PEOPLE, Plaintiff and Respondent, v. SHAMOND DEVELL OWENS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR226635)
Defendant Shamond Owens was convicted of two counts of inflicting corporal injury on a cohabitant resulting in traumatic condition. He raises two challenges to the conviction, neither of which has merit. We affirm the judgment.
BACKGROUND
Owens was charged with two counts of inflicting corporal injury on a cohabitant resulting in traumatic condition in violation of Penal Code section 273.5, one stemming from an incident on March 19, 2015 and the other from an incident earlier that month. The victim in both incidents was Kristine P.
All further statutory references are to the Penal Code.
Kristine P. testified at trial. In 2015, Owens was her boyfriend. They lived together some of the time on Humboldt Street in Vallejo, renting a room from Owens's cousin. Other people lived at that address while they were there, including Joshua Lee, who had moved in not long before the March 19, 2015 incident.
On March 19, 2015, Kristine P., Owens and Lee were at home. Kristine P., having been accused of having relations with other men, was in bed rocking, which she did as "self-soothing." Earlier in the day, Owens had hit her on her arms, punched her back and slapped her face. He had hit her with "kidney shots" in her "back [and] rib cage area," which, Kristine P. testified, were intended "to knock the air out of me so I couldn't move." He hit her with a closed fist. She begged him to stop, huddled and crying. Three times that day she urinated on herself because she was scared. Things came to a head at 1:00 a.m., when Owens was "at full blown agitation." Kristine P. testified that he "just grabbed me by my neck, lifted me up on the door and then tossed me across the room and then came and kicked me a couple of times, hit me a couple of times [in the] stomach and back area." He yelled " 'I don't know why I fuck with your bitch ass,' " squeezed her neck harder and tossed her across the room. She hit the end of the bed and a clothes bin and ended up on the floor. He came over to her and hit her in the stomach and kicked her. She curled up, and he then hit her in the back. Either roommates or the police came into the room, but she was in and out of consciousness.
There were scratches on her neck from his nails digging into her. Her back was bruised and cut, and her arms were bruised. She showed the police officer the marks on her body and told him her head hurt. She had severe bruising, two black eyes and a badly injured nose from an incident on March 1, 2015. She showed the officer those injuries as well.
Kristine P. testified about photographs and two videos depicting her injuries. The videos were shown to the jury. The second, which depicted her showing her injuries to the police officer, showed bruising on the right side of her face, swollen cheeks, a very swollen nose, a lump on her head, scratches to her neck, bruising and a cut on her back.
In the earlier incident, which occurred on March 1, 2015, Owen's female cousin asked if Kristine P. wanted to come outside on the porch and "have a cigarette with the ladies." The cousin urged her, saying, "You're always in that room. You never come out." Kristine P. agreed to go, but Owen was in the vicinity and told her she could not and, Kristine P. testified, to "get my ass in the room." She told him "no," that she was an adult, was going outside with the ladies and was "not doing nothing wrong." Owen pulled her by the arm and told her "no, you're going to do what I say." She told him she was leaving, went to their room and started to pack her belongings. Owens pushed her into a seated position and told her she wasn't going anywhere, and she responded that she was leaving and didn't "have to put up with this." He held her by the shoulder with his left hand so she couldn't get up, cocked his fist back and hit her with a closed fist "dead center in [her] face." Blood started spraying everywhere, and she was choking on it and blacking out. He went to cock his fist back to hit her again, but his cousin came in and grabbed his arm so he could not connect a second blow to her face. Both of her eyes were black and remained discolored and "puffy" for months after the incident. At the time of trial, she was unable to see well out of either eye, her nose was injured, she snored nonstop and had a hard time breathing.
Kristine P. did not call police after either incident. She was "ashamed to be in a relationship like that" and "accepted what was dished out to me." She declined the officer's offer to call paramedics. When she spoke to police on March 19, she was embarrassed and trying to cover for Owens so he wouldn't go to jail and miss the funeral of his mother, who had recently died. She did not tell the officer everything that happened. She ended her relationship with Owens that night because she feared for her life.
Joshua Lee, who was in custody on an unrelated case, testified. In 2015, he moved into Humboldt Street with his fiancée and his children. There were quite a few people living in the house, and he had not been informed of that when he paid the rent. Apart from a man named Derrick, he didn't know any of the people. There were two people living in the attic crawl space that he was "trying to get out of there." On March 19 at 1:00 a.m., he heard an argument in the attic space and was telling his daughter, who had been awakened by it, to go back to sleep. The argument went on and off and on "for a good amount of time." "They were fighting," the girl was "doing a lot of screaming and hollering" and Lee did not know what to tell his kids. His girlfriend dialed 911 and brought him the phone. He got on the phone with 911, feeling aggravated and stressed by what was going on. The fight was still happening, he testified, and he would "hear them one minute. And the next minute I wouldn't." "It was overwhelming and disturbing my family." The people "should have been gone" but "wouldn't leave."
Asked whether he heard someone being injured, Lee responded that he heard "a bunch of commotion, and [remembered] her saying she couldn't feel her legs, call an ambulance." He didn't remember being able to decipher what was actually happening and didn't see anything. He didn't remember talking with the police officer, and the transcript of their discussion did not refresh his recollection. What he heard was "a domestic fight between two people."
Lee further testified that when he and Owens were in custody at the same facility, Lee did not receive threats about testifying. Owens said only, "it's crazy that we were sitting next to each other when [Owens] knew [Lee] was going to be the witness." Owen's cousin had come to Lee's house at some point, but Lee was not home. He had no concerns about being in court and testifying.
A redacted recording of Lee's 911 call was played to the jury. It consisted of the single statement, "We got a guy here that is supposed to be leaving the house in the morning and he is in the back there beating his girl to death."
On cross-examination, Lee admitted he "never actually saw any physical contact" between Owens and Kristine P. He heard yelling, screaming, "tussling and thumping around." He called 911 partly because he wanted Owens and Kristine P. out of the house. They and others were squatting, and no one had told him they would be there when he paid the rent to move in. He also called police because of the fighting and having to explain it to his daughter. When the police came, they arrested Owens. Kristine P. then showered, got on her bike and left.
At the end of Lee's testimony, the district attorney asked to impeach him with the full recording of his conversation with Vallejo Police Officer Wes Simpson, in which Lee apparently said he had gone to the door of Owens's room and Owens hit Kristine P. and started choking her. The district attorney argued Lee's claimed inability to remember what he said to Simpson was "feigned." The court denied the request.
Simpson testified. On March 19, 2015, at 1:30 a.m., he was dispatched to Humboldt Street in response to a call from Lee regarding possible domestic violence. Lee directed Simpson toward the back of the house, where the screams were coming from. When he got to the kitchen, he saw the victim come running in from a hallway. She appeared very scared and frightened, was crying hysterically, was shaking and had her hand on her head like she had been injured. Simpson was wearing his body camera and recorded his conversation with her. The victim, who he identified as Kristine P., had a large bruise about the size of a fist on her lower back.
Because Kristine P. was holding her head, Simpson asked if she was hurt, and she pulled her hair back to show she got hit on her head. He noticed her left eye was darker than the other eye, and asked her about it, concerned she had been hit in the face. She had what appeared to be fingernail markings around her neck that were red in color and appeared fresh. She had bruises on her back, arms and neck.
Owens testified in his own defense. He met Kristine P. in a drug house and took her to a detox facility. The two were in a relationship in March 2015. On March 1, 2015, they argued and Owen accidentally struck Kristine P. in the face, hitting her eye. That strike left no marks or injuries. On March 19, 2015, they again argued when Owens asked Kristine P. about bruises he saw on her body. He had not seen her for several days before this and had called her to tell her his mother had died. When Kristine P. came over, Owen observed bruises on her arms and back. She appeared to be under the influence of crystal methamphetamine. Owens denied hitting, kicking, choking, scratching or having any physical contact with Kristine P. on March 19, 2015. He did not know how she had received the injuries.
The jury convicted Owens of two counts of inflicting injury on a cohabitant, one based on the March 1, 2015 incident and the other on the March 19, 2015 incident. The trial court sentenced him to the middle term of three years on the first count and a consecutive term of one year on the second count. Defendant timely appealed.
DISCUSSION
Owens raises two issues on appeal. First, he argues the trial court committed prejudicial error in admitting testimony of witness intimidation without evidence that Owens authorized such intimidation. Second, he argues the court committed reversible error and violated his rights to due process and a jury trial by instructing the jury that inflicting corporal injury on a cohabitant is a general intent crime.
I.
The Trial Court Did Not Err in Allowing Kristine P. to Respond
to Questions About Intimidation.
Owens complains that the trial court did not sustain his objections to Lee's testimony in response to the district attorney's questions about witness intimidation. The district attorney asked whether anyone had come to Lee's home and threatened him prior to his being in custody. Defense counsel objected on relevance grounds, and the court overruled the objection, whereupon Lee responded: "I know that his cousin had come to my house." Defense counsel again objected on relevance grounds, the court again overruled the objection, and Lee testified, "I wasn't home. I wasn't home." Defense counsel then interjected a hearsay objection, to which the court responded, "There was no conversation." The district attorney followed up by asking "Okay. So nobody ever came to your house and threatened you for how you would testify?" and Lee answered, "Like I said, I wasn't home. I was just told. Nobody answered the door."
Owens claims it was error to allow this evidence. He cites People v. Weiss (1958) 50 Cal.2d 535, People v. Hannon (1977) 19 Cal.3d 588 (Hannon) and People v. Terry (1962) 57 Cal.2d 538 for the proposition that evidence of a third party's attempt to suppress evidence is admissible only if shown to have occurred in defendant's presence or to have been authorized by him. Owens argues there was no evidence linking him to any alleged efforts to dissuade Lee from testifying and Lee denied Owens had threatened him directly while they were in custody together.
As Owens acknowledges, in subsequent cases our Supreme Court has held evidence that a witness is afraid to testify is relevant to his or her credibility and threats by third parties are relevant even if not linked to the defendant. (People v. Valdez (2012) 55 Cal.4th 82, 135-136 (Valdez); People v. Abel (2012) 53 Cal.4th 891, 924-925; People v. Mendoza (2011) 52 Cal.4th 1056, 1084 (Mendoza).) In Abel, the court explained its prior cases, observing that in Hannon "we were responding to the use of the evidence to show the defendant's consciousness of guilt; we were not concerned with whether it was relevant to some other issue, such as the witness's credibility." (Abel, at p. 924.) The court held " ' "[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible," ' " as is " ' "[a]n explanation of the basis for the witness's fear." ' " (Id. at p. 925.) This is so " 'whether or not the threat is directly linked to the defendant.' " (Ibid.)
Owens attempts to distinguish cases like Abel, contending that in such cases, "the witnesses were demonstrably reluctant to testify, had recanted prior statements and professed memory loss." Here, he argues, "there simply was no showing that Lee's testimony was inconsistent or suspect." Owens's argument was rejected by our Supreme Court in Valdez, supra, 55 Cal.4th 82. There, the defendant made the same argument, and cited a case on which Owens relies, People v. Yeats (1984) 150 Cal.App.3d 983, 986. (Valdez, at p. 135.) The court stated, "Defendant's argument fails in light of our recent decision in People v. Mendoza (2011) 52 Cal.4th 1056, 1086, which rejected the view that evidence of a witness's fear in testifying is inadmissible unless the witness's trial testimony is inconsistent with a prior statement. As we explained, 'evidence that a witness testifies despite fear is important to fully evaluating his or her credibility. [Citation.] The logic of this rationale does not hinge on whether the witness gave prior inconsistent testimony.' [Citation.] Thus, in order to introduce evidence of the witnesses' fear, the prosecution was not required to show that their testimony was inconsistent with prior statements or otherwise suspect." (Valdez, at pp. 135-136; see also id. at p. 136, fn. 33, disapproving Yeats.)
Further, here, as in Valdez, Owens "errs in asserting that [Lee's] trial testimony gave rise to no credibility issues to which the evidence of [his] fear was relevant." (Valdez, supra, 55 Cal.4th at p. 136.) The recording of Lee's statements during the 911 call is not in the record, but the colloquy in which the district attorney sought to play the recording to impeach Lee reflects that Lee gave detail in the call indicating Owens was the aggressor in the fight and "hit [Kristine P.] and started choking her." Lee stated "emphatically" he could tell Kristine P. was being choked, "like there was some sound or voice being cut off during the times so he could tell there was arguing versus choking." In addition, in the brief excerpt of the call that was admitted, Lee told the officer, "[w]e got a guy here . . . in the back there beating his girl to death." At trial, by contrast, Lee testified he didn't remember being able to decipher what was happening when he heard the screaming and he didn't see anything. Nor did he remember talking to Simpson, despite seeing the transcript of the 911 call at trial and hearing the recording a few days earlier. In attempting, twice, to use specific statements in the 911 call, the district attorney made plain her skepticism about whether Lee's lack of memory was "true nonmemory."
It was after the trial court sustained defense objections to the district attorney's requests to read the transcript of the interview or play the recording for the jury that the district attorney turned to intimidation, asking whether while in custody with Owens, Lee had received any threats about testifying. Lee flatly denied Owens had threatened him. The testimony about whether anyone had come to his house then ensued. Following that testimony, the district attorney asked whether, and again Lee flatly denied that, he had "concerns about being in court today testifying."
From this, it is apparent the district attorney inquired into intimidation because she questioned Lee's credibility due to differences between what he had told Simpson on March 19, 2015, and his testimony at trial. There was some basis for questioning the veracity of Lee's testimony, which was less clear about what he heard or saw, and less inculpatory, than his statements to the officer as the violence was occurring and in the immediate aftermath. It was fair for the district attorney to explore possible intimidation at trial, and, as we have indicated, the Supreme Court has held such questioning is permissible.
In short, there was no error. But even if there had been, we would find it harmless. The evidence in this case was not close. Kristine P. testified about Owens's acts of violence and her injuries, and Simpson testified about the injuries he observed when he responded to the scene. Owens admitted he hit Kristine P. in the face in the first incident, and while he claimed it was "accidental" and left no injuries or marks, jurors obviously rejected his testimony, as they did his denials that he inflicted the injuries Kristine P. was found with on March 19. Lee testified he heard Kristine P. screaming that night, and heard tussling and thumping, before he called 911. Lee told police there a guy was "beating his girl to death." There is no reasonable probability the jury would have reached a result more favorable to Owens absent the challenged exchange. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
II.
The Trial Court's Instruction on the Domestic Violence Offense
Was Not Erroneous.
Owens's second claim of error is that the court's instruction on the offense with which he was charged, inflicting corporal injury on a cohabitant in violation of section 273.5, indicated the offense was a general intent crime. Owens contends a violation of section 273.5 is a specific intent crime requiring the People to show the defendant intended to cause bodily injury, rendering the instruction erroneous. He further contends this error violated his rights to due process and a jury trial.
Section 273.5 defines the offense of inflicting corporal injury on specified persons as follows: "Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony . . . ." (§ 273.5, subd. (a).) Subdivision (b) lists the victims to which the offense applies, and includes among others the offender's spouse, former spouse, cohabitant and former cohabitant.
Subdivision (d) defines "traumatic condition" as "a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. For purposes of this section, 'strangulation' and 'suffocation' include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck." (§ 273.5, subd. (d).) Owens does not claim any error concerning this element of the offense.
The court instructed the jury on the elements of the offense using CALCRIM No. 840, which, as given, stated in relevant part:
"The defendant is charged in Counts One and Two with Inflicting An Injury On His Cohabitant that resulted in a traumatic condition in violation of Penal Code section 273.5[, subdivision] (a).
"To prove that the defendant is guilty of either crime, the People must prove that:
"1. The defendant willfully inflicted a physical injury on his cohabitant;
"AND
"2. The injury inflicted by the defendant resulted in a traumatic condition. "Someone commits an act willfully when he or she does it willingly or on purpose."
The court also gave an instruction on general intent, using CALCRIM No. 250, which, as given, stated:
"The crimes charged in this case require proof of the union, or joint operation, of act and wrongful intent.
"For you to find a person guilty of the crimes of Inflicting Corporal Injury On A Cohabitant, as charged in Counts One and Two, or either lesser crime, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime."
Owens did not object to these instructions in the trial court or seek an instruction on specific intent; however, the People concede that failure to object to a pattern instruction as legally incorrect does not forfeit the argument on appeal. We therefore turn to the merits.
Owens argues that "willful infliction of corporal injury states a specific intent, i.e., the intent to cause bodily injury." He acknowledges the Fourth District's decisions in People v. Thurston (1999) 71 Cal.App.4th 1050 (Thurston) and People v. Campbell (1999) 76 Cal.App.4th 305 (Campbell), disapproved on other grounds in People v. Farwell (2018) 5 Cal.5th 295, 304, fn. 6, rejecting the argument that section 273.5 defines a specific intent crime. However, he argues the courts got it wrong in both cases and takes issue with their reasoning.
In Thurston, the defendant contended the trial court had erroneously instructed the jury that his crime of inflicting corporal injury on the mother of his children resulting in a traumatic condition is a general intent crime, arguing that offense "is a specific intent crime because it requires both a general intent to use force against the spouse and a further specific intent that the force will result in a traumatic condition." (Thurston, supra, 71 Cal.App.4th at p. 1053.) The court rejected the argument and held section 273.5, subdivision (a) comes "within the general rule that statutes proscribing willful behavior are general intent crimes." (Thurston, at p. 1055.) The defendant also argued that even if section 273.5, subdivision (a) is characterized as a general intent crime, it "still requires an instruction that the perpetrator had a separate intent to bring about the injury." (Thurston, at p. 1055.) The court disagreed, holding that "[t]o satisfy the intent element of spousal injury, a prosecutor need only show an intended assaultive act." (Id. at pp. 1055-1056.)
The Thurston court began its analysis by stating, " 'As a general rule, a statute proscribing willful behavior is a general intent offense,' " but may " 'define a specific intent offense if the statute includes other language requiring a specific intent.' " (Thurston, supra, 71 Cal.App.4th at p. 1053.) It observed that section 273.5 "is a battery offense—a use of force resulting in an injury," and that many battery offenses involve infliction of pain or physical injury, but noted that element "does not necessarily elevate a particular battery to a crime requiring specific intent to inflict trauma." (Thurston, at pp. 1053-1054.) Rather, " '[w]hen a battery is committed against any person and serious injury is inflicted on the person,' " "[t]he courts have concluded consistently that such felony battery is a general intent crime, requiring only an intent to do the assaultive act." (Id. at p. 1054.)
The court found an even stronger parallel in "section 273d, which prohibits infliction of corporal injury on a child. It uses language virtually identical to that of section 273.5, subdivision (a): 'Any person who willfully inflicts upon a child any . . . injury resulting in a traumatic condition is guilty of a felony . . . .' Our courts have consistently held that this offense is a general intent crime requiring only that the assailant have 'purpose or willingness to commit the act,' not the specific intent to inflict traumatic injury." (Thurston, supra, 71 Cal.App.4th at p. 1054, citing People v. Atkins (1975) 53 Cal.App.3d 348, 358 (Atkins).)
Finally, Thurston rejected as "simply wrong" the defendant's argument that "even if characterized as a general intent crime, section 273.5, subdivision (a) still requires an instruction that the perpetrator had a separate intent to bring about the injury." (Thurston, supra, 71 Cal.App.4th at p. 1055.) It held, instead, that "[t]o satisfy the intent element of spousal injury, a prosecutor need only show an intended assaultive act." (Id. at pp. 1055-1056.)
In Campbell, supra, 76 Cal.App.4th 305 the Fourth District, relying on Thurston, again held a defendant need only willfully use force against his spouse to violate section 273.5, "even if he did not specifically intend to cause the traumatic injury." (Id. at p. 308.)
In Atkins, supra, 53 Cal.App.3d 348, a case on which Thurston relied, the Third District interpreted section 273d's language "wilfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition" to create a general-intent, not a specific-intent, crime. (Atkins, at p. 358 & fn. 1.) Atkins cited Penal Code section 7, subdivision 1, which provides that the word "willfully" for purposes of the Penal Code means, " 'when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.' " (Atkins, at p. 358; § 7, subd. (1), italics added.) The Atkins court similarly upheld the trial court's instruction of the jury on a charge under section 273a, subdivision (1) (now section 273a, subd. (a)) using "the words of the statute," rejecting the argument that an instruction on criminal negligence was required. (Atkins, at p. 361.)
More than one division of this court agreed with Atkins that felony child abuse under section 273a, subdivision (1) is a general intent crime. (People v. Pointer (1984) 151 Cal.App.3d 1128, 1134; People v. Northrop (1982) 132 Cal.App.3d 1027, 1038, disapproved on other grounds in People v. Smith (1984) 35 Cal.3d 798, 807-808.) Further, in 1999, the California Supreme Court followed Atkins and held that section 273a, subdivision (1) was a general intent crime and, for direct perpetrators, does not require even criminal negligence with respect to the resulting injury or harm. (Sargent, supra, 19 Cal.4th at pp. 1217, 1219, 1224.) The portion of section 273a, subdivision (1) under which Sargent was charged proscribed "under circumstances or conditions likely to produce great bodily harm or death, willfully . . . inflict[ing] [on a child] unjustifiable physical pain or mental suffering." (Sargent, at pp. 1214, 1215.) The court interpreted the statute to require only general criminal intent. (Id. at pp. 1219-1224.) The intent requirement pertained only to the act of inflicting pain or suffering and not to producing great bodily injury. (Id. at p. 1222.)
The court distinguished between those who directly abuse a child and those who do so indirectly, such as by failing to seek medical treatment, or permitting situations that put a child in danger. (People v. Sargent (1999) 19 Cal.4th 1206, 1218-1219 (Sargent).) --------
The trial court's instruction in this case tracked the language of statute. The court told the jury it had to find "defendant willfully inflicted a physical injury on his cohabitant" and that the "injury inflicted by the defendant resulted in a traumatic condition." (Cf. § 273.5 ["willfully inflicts corporal injury resulting in a traumatic condition upon a victim"].) The court also gave the general intent instruction, telling the jury that the defendant "must not only commit the prohibited act, but must do so with wrongful intent" and that "[a] person acts with wrongful intent when he or she intentionally does a prohibited act." These instructions are entirely consistent with the cases cited above. The court told the jury that to convict Owens it had to find he intentionally inflicted injury on Kristine P.
Owens contends we should reject Thurston and Campbell and rely instead on People v. Rodriguez (1992) 5 Cal.App.4th 1398. In Rodriguez, discussing whether section 273.5 is a crime of moral turpitude, the court described that statute as requiring a finding that the defendant set out to injure the victim. (Rodriguez, at p. 1402.) As the court in Thurston pointed out, Rodriguez "assume[d] without any citations or explanation that the section requires 'intent to injure,' providing no guidance on the issue before us." (Thurston, supra, 76 Cal.App.4th at p. 1055, fn. 3.) Rodriguez is "mistaken" on that point. (People v. Burton (2015) 243 Cal.App.4th 129, 134, fn. 8; id. at p. 136.) The language in Rodriguez on which Owens relies was also dicta, since intent to do harm is not necessary for moral turpitude. (People v. Chavez (2000) 84 Cal.App.4th 25, 30; see also People v. Campbell (1994) 23 Cal.App.4th 1488, 1493 [distinction between general-intent and specific-intent crimes is irrelevant to the question of moral turpitude].)
In his reply brief, Owens also cites People v. Lewis (2004) 120 Cal.App.4th 837, in which the Fourth District held section 1203, subdivision (e)(3), which made a defendant presumptively ineligible for probation if he "willfully inflicted great bodily injury or torture in the perpetration of the crime," required a finding that he had the specific intent to cause great bodily injury or torture. (Lewis, at p. 853.) The reasoning of Lewis is in tension with Atkins, yet the court cited Atkins without disagreement. (See Lewis, at pp. 852-853.) Further, in Lewis, the Fourth District did not discuss its prior decisions in Thurston and Campbell, with which Lewis is also in tension. Lewis addresses a statute relating to punishment, i.e., probation, and does not define a crime. We need not decide whether this distinction between Lewis, on the one hand, and Thurston, Campbell, and Atkins, on the other justifies a different analysis. Since Lewis is not controlling, we leave its soundness for another day.
We find Thurston and Campbell persuasive. They have been reaffirmed in more recent opinions (see People v. Burton, supra, 243 Cal.App.4th at p. 134, fn. 8; Donley v. Davi (2009) 180 Cal.App.4th 447, 458), one of which, Donley, was authored by then Third District Justice, now Chief Justice, Tani Cantil-Sakauye. Further, in Sargent, our Supreme Court followed the closely analogous case of Atkins. The parties have not cited and we have not found any published authority that disagrees with these decisions. We see no reason to depart from their analysis.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.