Opinion
NOT TO BE PUBLISHED
Superior Court County Ct. No. 1199694, of Santa Barbara, George C. Eskin, Judge
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen, Deputy Attorney General, Lance E. Winters, Supervising Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Moises Sotelo appeals the judgment entered after a jury convicted him of attempted murder (Pen. Code, §§ 187, subd. (a), 664), aggravated mayhem (§ 205), and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also found true the allegation that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated trial, the trial court found true allegations that Sotelo had served a prior prison term (§667.5, subd. (b)) and had suffered a prior conviction that qualified as a strike and a serious felony (§§ 667, subds. (a), (d)(1), (e)(1), 1170.12, subds. (b)(1), (c)(1)). He was sentenced to a total state prison term of 30 years to life plus 33 years. He contends (1) the evidence is insufficient to support his conviction for aggravated mayhem; (2) there is insufficient evidence supporting the gang enhancement finding; (3) the trial court erred in refusing to stay his sentence on the attempted murder count pursuant to section 654; and (4) he was sentenced to the upper term on the attempted murder count in violation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). We affirm.
Further statutory references are to the Penal Code, unless otherwise noted.
FACTS
At about 10:00 p.m. on February 11, 2005, Juan Diaz was walking to his house on Milpas Street in Santa Barbara when Sotelo approached him at the intersection of Ortega Avenue and De La Vina Street and asked for a cigarette. After Diaz responded that he did not have one, Sotelo started attacking him with a kitchen knife. Diaz ran away, but Sotelo "chased [him] down." Sotelo slashed Diaz from one of his eyebrows to his mouth and stabbed him multiple times. Diaz suffered stab wounds to his forehead, abdomen, chest, and left thigh. Sotelo stabbed Diaz in the scalp with enough force to penetrate his skull, and collapsed his lung by stabbing him in the chest. Diaz suffered permanent injuries as a result of his wounds, including numbness on the right side of his face, loss of gripping ability in his right hand, and numerous disfiguring scars.
Santa Barbara police officers who responded to the scene found three distinct pools of blood, which led the officers to believe that the victim had bled at each location for a significant period of time. Diaz was found lying in the doorway of the house at 116 Ortega Avenue. The police followed a trail of blood from that location to the rear of 233 West Ortega, near Unit A. One of the officers knew that Westside gang members Armando and Ricardo Arrayga lived in the apartment where the trail of blood ended. After the Arraygas' mother gave the police permission to enter the apartment, they found Sotelo, the Arrayga brothers, and another individual in an upstairs bedroom. Sotelo had a t-shirt wrapped around his hand, which was cut and bleeding. The police also found a backpack containing a pair of bloody shoes.
Sotelo was a member of the Westside gang, and his attack on Diaz took place in the gang's territory. His gang moniker, "Demon," is tattooed on his wrist. He also has several other tattoos that identify him as a gang member. His younger brother Daniel was also a member of the gang. The day after the incident, Daniel told Santa Barbara Police Officer Gary Siegel he had seen his brother attacking Diaz from the front yard of their house at 116 West Ortega, and that Sotelo ran away after Daniel yelled at him to stop. At trial, however, Daniel claimed that his brother Sotelo was out with friends when the incident occurred and that he told the police he had not seen the assailant.
Officer Siegel testified as the prosecution's gang expert. He opined that Sotelo's attack on Diaz was committed for the benefit of the Westside gang. Members of the gang believed they garnered "respect" from other members by committing crimes. According to Siegel, numerous stabbings had been carried out by members of the gang in the preceding five years in order to establish the gang's territory and convey the message that the gang would resort to violence if people did not do what it wanted. The gang, which had approximately 50 to 75 active members, was also involved in homicides, attempted homicides, robberies, drug offenses, and vandalism. Siegel also testified that Daniel had told him he would never testify against another gang member.
DISCUSSION
I.
Sufficiency of the Evidence – Aggravated Mayhem
Sotelo contends that his conviction for aggravated mayhem (§ 205) must be reversed or reduced to simple mayhem (§ 203) because the evidence is insufficient to support the finding that he had the specific intent to maim his victim. We disagree.
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. . . ."
Section 203 provides: "Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem." As the jury was instructed, simple mayhem is a lesser included offense of aggravated mayhem. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1167.) If the evidence is insufficient to prove aggravated mayhem but sufficient to prove simple mayhem, we may reduce the conviction to the lesser offense and remand for resentencing. (§ 1260.)
In reviewing the sufficiency of the evidence to support a conviction for aggravated mayhem, "we determine '"whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." [Citations.]' [Citation.] Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. [Citations.] The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusions. [Citations.]" (People v. Quintero, supra, 135 Cal.App.4th at pp. 1161-1162.) "In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether '"'any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt.'" [Citations.]' [Citation.] Unless it is clearly shown that 'on no hypothesis whatever is there sufficient substantial evidence to support the verdict' the conviction will not be reversed. [Citation.]" (Quintero, supra, at p. 1162.)
Specific intent to maim is an essential element of aggravated mayhem. (§ 205; People v. Quintero, supra, 135 Cal.App.4th at p. 1162.) "[S]pecific 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." (People v. Ferrell (1990) 218 Cal.App.3d 828, 835.) Such intent may be inferred, however, "'. . . from the circumstances attending an act, the manner in which it is done, and the means used, among other factors.' [Citation.]" (Quintero, supra, at p. 1162.) For example, evidence that a defendant's attack was aimed at a vulnerable part of the victim's body, such as his head, supports an inference that the defendant specifically intended to cause a maiming injury. (Ibid.; People v. Park (2003) 112 Cal.App.4th 61, 69.)
Here, Sotelo focused his attack on a particularly vulnerable portion of the victim's body. He slashed Diaz's face with a knife, and stabbed him in the head hard enough to penetrate his skull. Injuries to Diaz's arms were caused when he attempted to protect his face from the attack. This evidence is plainly sufficient to support the jury's finding that Sotelo specifically intended to maim Diaz. (People v. Quintero, supra, 135 Cal.App.4th at p. 1163; People v. Park, supra, 112 Cal.App.4th at p. 69 [evidence deemed sufficient to support finding that defendant specifically intended to maim where, among other things, he "aimed at an extremely vulnerable portion of [the victim's] body: his head"].)
Sotelo's reliance on People v. Sears (1965) 62 Cal.2d 737, overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 509-510, footnote 17, is unavailing. In Sears, the Supreme Court found the evidence insufficient to prove that the defendant specifically intended to maim his victim when he struck her several times with a steel pipe in the head and neck. (Sears, supra, at p. 745.) Sotelo did not merely hit his victim with an object. Rather, he slashed his face from top to bottom and stabbed him in the scalp. Moreover, Diaz's testimony that his arms were cut when he put them up to protect his face supports the inference that the attack was specifically directed at his face. Although Sotelo correctly notes there is no evidence that he planned his attack or that he immediately ceased the attack after he had maimed his victim's face (see, e.g., People v. Park, supra, 112 Cal.App.4th at p. 70), the direct and focused nature of the attack on Diaz's face and head is sufficient by itself to support the inference that Sotelo specifically intended to cause a maiming injury.
The record belies Sotelo's claim that "the jury instructions as to what was necessary to establish aggravated mayhem were confusing" because the instruction the court gave on the lesser included offense of simple mayhem "was not clear in pointing out the difference in the two crimes." The instructions given clearly provided that aggravated mayhem required proof of specific intent to maim, while simple mayhem did not. (CALCRIM Nos. 251, 252, 800.)
II.
Sufficiency of the Evidence – Gang Enhancement
Sotelo claims the evidence is insufficient to support the finding that he committed his offenses to promote a criminal street gang, as provided by section 186.22, subdivision (b)(1). Reviewing the record for substantial evidence (People v. Augborne (2002) 104 Cal.App.4th 362, 371), we conclude otherwise.
Section 186.22, subdivision (b)(1), provides for an additional sentence to "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." A "criminal street gang" is a group whose members "engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).)
"It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.]" (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) Such evidence may include "testimony about the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendant's membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations]." (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657, fns. omitted.)
Sotelo does not dispute (1) that the Westside gang is a criminal street gang; (2) that he was a member of that gang when he committed his crimes; (3) that his attack on Diaz took place within the gang's territory; (4) that he did not know his victim and attacked him without provocation; (5) that he fled to his fellow gang members' house immediately after the attack; and (6) that several other Westside gang members have been convicted of assaults with gang enhancements. He also fails to challenge Officer Siegel's opinions that gangs seek to obtain "respect" from the community through fear and intimidation, and that they will resort to violence in order to establish and maintain their territory. This evidence, viewed in the light most favorable to the judgment, is sufficient to support the jury's finding that Sotelo's crimes were committed for the benefit of the Westside gang.
Sotelo complains that "there was no evidence of graffiti, gang signs being thrown, or a gang name called out" in conjunction with his attack on Diaz. He offers no authority, however, for the proposition that such evidence was essential to the jury's finding that he committed his crimes to promote his gang. He also takes issue with Officer Siegel's opinion that gang members commit violent crimes to improve their stature within the gang, asserting that "internal added gang prestige does not benefit a gang, and unless the assailant broadcasts that his efforts were for the gang, there is no gang benefit." Neither criticism is well taken. Regardless of whether an individual gang member's selfish motivation is intended to benefit his gang, any criminal conduct committed in association with a gang is also sufficient to trigger the enhancement. (§ 186.22, subd. (b)(1).) Moreover, a gang member does not have to "broadcast" his gang membership in order for his crime to promote the gang's criminal activity.
In re Frank S., supra, 141 Cal.App.4th 1192, does not compel a different result. In that case, the expert's opinion was the only evidence offered to prove that the defendant's criminal conduct benefited his gang. (Id., at p. 1199.) As we have noted, there was ample evidence independent of the expert's opinion from which the jury could find that Sotelo committed his crimes for the promotion of his gang.
III.
Section 654Sotelo also contends that the trial court violated section 654's bar against multiple punishments by imposing consecutive sentences on his convictions for aggravated mayhem and attempted murder. We disagree.
Section 654 "prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective." (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) "If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
As a general rule, the trial court determines the defendant's "intent and objective" under section 654 by a preponderance of the evidence. (People v. Cleveland (2001) 87 Cal.App.4th 263, 266, 268.) "We review the court's determination of [Sotelo's] 'separate intents' for sufficient evidence in a light most favorable to the judgment, and presume in support of the court's conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.]" (Id., at p. 271.)
It has long been settled that a defendant can harbor separate intents and objectives to maim and kill: "[A] defendant may intend both to kill his or her victim and to disable or disfigure that individual if the attempt to kill is unsuccessful." (People v. Ferrell, supra, 218 Cal.App.3d at pp. 833-834.) The evidence in this case is plainly sufficient to support the finding that Sotelo intended to kill Diaz when he thrust the knife into his chest, puncturing his lung, and stabbed him in the head with enough force to penetrate his skull. (People v. Bolden (2002) 29 Cal.4th 515, 561 ["In plunging the knife so deeply into such a vital area of the body of an apparently unsuspecting and defenseless victim, defendant could have had no other intent than to kill"].) Moreover, the court could reasonably infer that Sotelo was pursuing a separate intent and objective to maim Diaz when he slashed his face, because one would not expect the injury to be fatal. Such a gratuitous act of violence supports the inference that Sotelo did not maim Diaz to facilitate his murder, but rather did so with the independent objective of permanently disfiguring him if he survived. "'. . . [S]ection [654] cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense.'" (People v. Cleveland, supra, 87 Cal.App.4th at p. 272.)
The record belies Sotelo's contention that the court based its decision to impose consecutive sentences out of personal animus. We also reject Sotelo's claim that the court's decision in this regard violated his Sixth Amendment right to a jury trial, as contemplated by Blakely v. Washington (2004) 542 U.S. 296, and Cunningham, supra, 127 S.Ct. 856. Our Supreme Court recently held "that neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms." (People v. Black (2007) 41 Cal.4th 799, 806.) We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
IV.
Imposition of Upper Term
In a supplemental letter brief, Sotelo contends that Cunningham compels the conclusion that the trial court erred in imposing the upper term on the attempted murder count based on aggravating circumstances that were not found true by the jury beyond a reasonable doubt. In his reply brief, he acknowledges our Supreme Court's recent holding that "if one aggravating circumstance has been established in accordance with . . . constitutional requirements . . . the upper term sentence is the 'statutory maximum.'" (People v. Black, supra, 41 Cal.4th at p. 813, fn. omitted.)
We reject the People's contention that Sotelo forfeited this claim by failing to raise it below. (People v. Sandoval (2007) 41 Cal.4th 825, 837.)
In sentencing Sotelo to the upper term, the court relied in part on the aggravating circumstance that Sotelo was on parole when the crimes were committed. Sotelo does not dispute that the fact of his parole status falls under the "prior conviction" exception to the rule upon which Blakely and Cunnigham are based. Rather, he argues that our Supreme Court's recent pronouncements on the matter "are not in alignment with the United States Supreme Court rulings and that this matter is not finally settled." As we already indicated, however, we are bound by the decision in Black. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.