People v. Ausbie

• Citation: 123 Cal.App.4th 855,20 Cal.Rptr.3d 371
• Decision Date: 29 October 2004
• Docket Number: No. F044294.,F044294.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Shaani Aaisha AUSBIE, Defendant and Appellant.

20 Cal.Rptr.3d 371

123 Cal.App.4th 855

The PEOPLE, Plaintiff and Respondent, v. Shaani Aaisha AUSBIE, Defendant and Appellant.

No. F044294.

Court of Appeal, Fifth District.

October 29, 2004.

Certified for Partial Publication.^*

Rehearing Denied November 12, 2004.

Review Denied January 12, 2005.

A.M. Weisman, Diamond Bar, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Raymond L. Brosterhous and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DAWSON, J.

Shaani Aaisha Ausbie (appellant) was convicted of one count of mayhem (Pen. Code, § 203; count 1),¹ one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 2), and one count of battery with serious bodily injury (§ 243, subd. (d); count 3). An allegation that appellant had personally used a razor knife in the commission of the mayhem offense (§ 12022, subd. (b)(1)) and two allegations of personal infliction of great bodily injury in the commission of the assault (§ 12022.7, subd. (a)) were found true. Appellant was found to have served a prior prison term (§ 667.5, subd. (b)).

Appellant was sentenced to a total determinate term of 10 years in state prison, consisting of the middle term of three years for the aggravated assault conviction, with two 3-year enhancement terms for personal infliction of great bodily injury and a one-year enhancement for the prior prison term. Sentences on the other counts were imposed and stayed. Various tests and fines were ordered, including restitution to be paid to Cynthia Robinson in the amount of $1,043.65 and restitution to be paid to Misty Garcia in an amount to be determined.

On appeal, appellant contends her convictions for battery with serious bodily injury and assault by means of force likely to produce great bodily injury must be reversed because they are lesser offenses necessarily included in the mayhem offense. Appellant also claims error in the jury instructions and the restitution order. Respondent agrees that the conviction for battery with serious bodily injury must be reversed, and we accept that concession and reverse the conviction on count 3. We modify appellant's restitution order to be joint and several, but find the remainder of her contentions to be without merit.

FACTS

Cynthia Robinson and her friend Misty Garcia went to the Elks Lodge in Kern County late one evening and saw appellant at the bar. There was bad blood between appellant and Robinson over appellant's boyfriend, Michael Whatley. Appellant and Robinson soon exchanged words, and words escalated to blows when appellant punched Robinson and she punched back. Appellant's sister, Aarica Kitchen, joined the fray, hitting and kicking Robinson.

Elks Lodge security officers stopped the fight and escorted the combatants outside, where they resumed their battle. Using a razor or box cutter later found in Kitchen's vehicle, appellant fought with Robinson until Robinson, bloody and weak, made her retreat. Meanwhile, Kitchen and Garcia did battle. Moments later, Robinson saw appellant run toward Garcia, hit her, and make slashing motions toward her.

Robinson was cut six or seven times during the altercation in the parking lot, and suffered injuries to her wrist, face, arms, head and chest. Her wounds required over 300 stitches and 30 to 40 staples to repair, and she was hospitalized for two days. Garcia was cut on her arm, face and breast, requiring 200 stitches to repair and resulting in scars.

Garcia and Robinson testified that they carried no weapon during the fight and that neither had threatened appellant or Kitchen.

DISCUSSION

1. Lesser included offenses of mayhem

Appellant was convicted of mayhem (count 1), assault by means of force likely to produce great bodily injury (count 2), and battery with serious bodily injury (count 3). She contends the convictions on counts 2 and 3 must be reversed because both assault by means of force likely to produce great bodily injury and battery with serious bodily injury are offenses necessarily included within the offense of mayhem.

Respondent concedes that battery with serious bodily injury is a necessarily included offense of mayhem and that the conviction for battery must be reversed. We accept that concession and will reverse count 3. The completed offense of mayhem, of necessity, includes the completed offense of battery with serious bodily injury. (People v. Ortega (1998) 19 Cal.4th 686, 692, 80 Cal.Rptr.2d 489, 968 P.2d 48 [an offense is necessarily included where greater offense cannot be committed without necessarily committing lesser offense]; People v. Moran (1970) 1 Cal.3d 755, 763, 83 Cal.Rptr. 411, 463 P.2d 763 [when jury expressly finds the defendant guilty of both greater and lesser offenses and evidence supports verdict as to greater offense, conviction of that offense is controlling, and conviction of lesser offense must be reversed].) We also agree with respondent, however, that assault by means of force likely to produce great bodily injury is not an offense necessarily included in the offense of mayhem.

We begin our analysis with section 954, which "sets forth the general rule that defendants may be charged with and convicted of multiple offenses based on a single act or an indivisible course of conduct. It provides in relevant part: `An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense . . . . The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, . . .' (Italics added.)" (People v. Pearson (1986) 42 Cal.3d 351, 354, 228 Cal.Rptr. 509, 721 P.2d 595.)

Appellant is correct, however, in noting that "multiple convictions may not be based on necessarily included offenses." (People v. Pearson, supra, 42 Cal.3d at p. 355, 228 Cal.Rptr. 509, 721 P.2d 595.) "[A] defendant properly may be convicted of two offenses if neither offense is necessarily included in the other, even though under section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct. The necessarily included offense rule is used to determine whether a defendant improperly has been convicted of both a greater offense and an included offense, or properly has been convicted of separate offenses." (People v. Ortega, supra, 19 Cal.4th at p. 693, 80 Cal.Rptr.2d 489, 968 P.2d 48.)

Appellant relies on People v. DeAngelis (1979) 97 Cal.App.3d 837, 159 Cal.Rptr. 111 as being directly on point. A careful reading of that opinion, however, reveals that its holding is limited: "An assault is necessarily included in mayhem where the assault is a continuing event and the mayhem results during the course thereof. The lesser merges into the major." (Id. at p. 841, 159 Cal.Rptr. 111.) Though the DeAngelis defendant had been charged with mayhem and with assault on the same victim by means of force likely to produce great bodily injury, the jury convicted DeAngelis only of mayhem and the lesser offense of simple assault. Thus, the court's holding that assault is a lesser offense subsumed in the offense of mayhem (see also People v. McKelvy (1987) 194 Cal.App.3d 694, 702, 239 Cal.Rptr. 782; People v. Krupa (1944) 64 Cal.App.2d 592, 597, 149 P.2d 416) does not also mean that assault by means of force likely to produce great bodily injury is so subsumed.²

Appellant also relies on People v. Moody (1943) 62 Cal.App.2d 18, 143 P.2d 978 as being directly on point. The question presented there, however, was not whether an aggravated assault was necessarily included within the offense of mayhem but, instead, whether the jury's conviction on an aggravated assault charge was necessarily inconsistent with the jury's acquittal on a charge of mayhem. While the Moody court did mention the subject of lesser included offenses in analyzing the answer to this question, it also mentioned "milder" and "junior" offenses as well as "the major crime" and "the more serious crime." (Id. at p. 21, 143 P.2d 978.) The court simply did not address, much less decide, whether assault by means of force likely to produce great bodily injury is an offense necessarily included in the offense of mayhem. (See also People v. Kimmerle (1928) 90 Cal.App. 186, 189, 265 P. 525 [same].)

The modern rationale for the crime of mayhem in California is to protect the integrity of the victim's person from disfigurement. (People v. Keenan (1991) 227 Cal.App.3d 26, 34, 277 Cal Rptr. 687; People v. Newble (1981) 120 Cal.App.3d 444, 451, 174 Cal.Rptr. 637.) The offense includes three elements: (1) an unlawful act by means of physical force; (2) resulting in an injury which "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 ...;" and (3) done "maliciously," defined as "an unlawful intent to vex, annoy, or injure another person." (§ 203; CALJIC No. 9.30; 53 Am.Jur.2d (1996) Mayhem and Related Offenses, § 8, p. 56.) The statute itself does not define the nature of force required but focuses instead on the nature of the injuries inflicted. (See 53 Am.Jur.2d, supra, § 1, p. 51; People v. Sears (1965) 62 Cal.2d 737, 744, 44 Cal.Rptr. 330, 401 P.2d 938 [required act is an "aggressive act" resulting in one of the enumerated injuries], overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 20 Cal. Rptr.2d 582, 853 P.2d 1037.) It is the nature of the injury that distinguishes mayhem from the related offenses of battery and assault, not the degree of force. (See 53 Am.Jur.2d, supra, § 8, p. 56 [means or manner used to inflict injury...