People v. Park

• Decision Date: 18 September 2003
• Docket Number: No. B156250.,B156250.
• Citation: 4 Cal.Rptr.3d 815,112 Cal.App.4th 61
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Ho PARK, Defendant and Appellant.

4 Cal.Rptr.3d 815

112 Cal.App.4th 61

The PEOPLE, Plaintiff and Respondent, v. David Ho PARK, Defendant and Appellant.

No. B156250.

Court of Appeal, Second District, Division 4.

September 18, 2003.

Review Denied December 10, 2003.

Law Offices of Dennis A. Fischer, Dennis A. Fischer, Santa Monica, and John M. Bishop, Fresno, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Karen Bissonnette, Deputy Attorneys General, for Plaintiff and Respondent.

CHARLES S. VOGEL, P.J.

INTRODUCTION

A jury convicted defendant David Ho Park of aggravated mayhem, assault with a deadly weapon by means likely to produce great bodily injury, and attempting by fraud to persuade a witness to give false material information to the police. In regard to the first two offenses, the jury found true the allegations defendant had personally used a deadly and dangerous weapon and had inflicted great bodily injury.

On this appeal, defendant raises only one contention. In regard to his conviction for aggravated mayhem, he urges there is insufficient evidence that he had, as required by law, the specific intent to maim the victim. He therefore asks us, pursuant to Penal Code section 1260,¹ to modify the conviction to one for (simple) mayhem and to remand for a new sentencing hearing. We disagree. We conclude a reasonable trier of fact could have found beyond a reasonable doubt defendant had the specific intent to maim and therefore affirm the judgment.

LEGAL AND FACTUAL BACKGROUND

Because defendant's appeal only challenges the sufficiency of the evidence to sustain his conviction for aggravated mayhem, we omit recitation of the evidence relating to the other crimes for which he was convicted.² We begin with an explanation of the law governing the difference between (simple) mayhem and aggravated mayhem. Next we set forth the evidence offered on mayhem. We then summarize the pertinent jury instructions, the parties' theories of the case as set forth in their closing arguments, and an exchange between the court and the jury regarding a further clarification of the law.

Legal Background

Mayhem is defined in section 203.³ The statute, enacted in 1872, 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."

Aggravated mayhem is defined in section 205. The statute, enacted in 1987, 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."

There are two key differences between the crimes: the required intent and the potential sentence.

Mayhem is a general intent crime. (People v. Sekona (1994) 27 Cal.App.4th 443, 453, 32 Cal.Rptr.2d 606.) "The necessary intent for mayhem is inferable from the types of injuries resulting from intentional acts. [Citations.] Thus, the crime is mayhem if the blow results in putting out the eye even if the person who unlawfully strikes another does not have the specific intent to commit the offense. [Citations.]" (Ibid.)

Aggravated mayhem, on the other hand, requires the specific intent to cause the maiming injury. (People v. Ferrell (1990) 218 Cal.App.3d 828, 833, 267 Cal.Rptr. 283, citing legislative history of the statute.) Evidence that shows no more than an "indiscriminate attack" is insufficient to prove the required specific intent. (Id. at p. 835, 267 Cal.Rptr. 283.) "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. [Citation.]" (Ibid.)

The sentence for aggravated mayhem is significantly greater than that for mayhem. Aggravated mayhem is punishable by life imprisonment with the possibility of parole (§ 205) while mayhem is punishable by two, four, or eight years in state prison (§ 204).

Trial Evidence

The crimes occurred at approximately 3:00 a.m. at the Western Pho Restaurant in the City of Los Angeles. The victim, Ja Won Lee (Ja),⁴ was eating with friends when defendant came to the restaurant with several companions. Defendants' group sat down next to the victim's party. Defendant's group looked at Ja's group in an unfriendly or threatening way. The two groups engaged in an "out-staring fight."

Ja's group finished eating, stood up, and warned defendant's group to "watch out [their] back[s]." Ja's group left the restaurant and went to the parking lot to smoke. Defendant appeared to be very angry. Defendant walked to the rear of the restaurant and obtained a long steel knife-sharpener with a black handle.⁵ Defendant, armed with this weapon, walked out of the front of the restaurant and entered the parking lot. Defendant was soon joined by his companions. Defendant asked Ja's group: "Where you from?" and also stated: "I'm from K.P."⁶ Ja neither replied nor moved. Defendant drew the steel knife-sharpener from behind his head and brought the weapon forward over his shoulder in a throwing motion. Ja believed defendant intended to hit him in the head. Ja held his arm in front of his face to protect himself. Defendant hit Ja's arm three or four times with the weapon as Ja attempted to block the blow. With a final blow, defendant hit Ja in the mouth with the weapon. This last blow broke eight of Ja's teeth and caused profuse bleeding. Defendant said: "This is K.P., mother-fucker." This attack upon Ja forms the basis of defendant's conviction for aggravated mayhem.

A fight then occurred between defendant's group and Ja's group. A security guard broke up the fight. Defendant and his companions fled before the police arrived.

Defendant did not testify or present any defense witnesses.

Jury Instructions

Because the information charged defendant both with aggravated mayhem (count 1) and mayhem (count 2) based upon the one attack on Ja, the jury was instructed: "The defendant may not be found guilty of both Counts 1 and 2" and "The crime of mayhem as charged in Count 2 is lesser to that of aggravated mayhem charged in Count 1.[¶] Thus you are to determine whether the defendant is guilty or not guilty of the crime charged in Count 1 or of the lesser crime charged in Count 2." The standard instructions defining aggravated mayhem (CALJIC No. 9.32) and mayhem (CALJIC No. 9.30) were also submitted.

Closing Arguments

Both counsel identified the primary issue as identification: Was defendant the person who attacked Ja? (See also fn. 2, ante.) In fact, this was the sole issue defense counsel addressed; he never argued the issue of aggravated mayhem versus mayhem.⁷ However, the prosecutor addressed at length the difference between mayhem and aggravated mayhem. In particular, he stated "[i]n aggravated mayhem, the specific intent that is required is that there is an intent to disfigure or disable" whereas "[s]imple mayhem requires that the defendant unlawfully used physical force on the victim causing permanent disfigurement or disability ... and that he did it maliciously, with an intent to vex, annoy or injure. This is a general intent crime. There is no requirement that there is this specific intent to injure."

The prosecutor then argued:

"Okay, let's talk about the specific intent to disfigure or disable. [Defendant] arms himself with this (indicating) [the steel knife-sharpener] before he goes outside.... It was more than just wanting to fight. It was wanting to injure. Remember, [defendant's] group outnumbered the other group.... [Defendant's] group had four men versus three men. If he wanted to just fight it out, skin to skin, he clearly could have done that. He would have — his group would have been in the majority. But he had to have an even greater advantage. He had to have this metal bar. He asks [Ja] `Where you from' before he attacks. `Where you from?' That's a challenge. And, unfortunately, probably all of us who live in Southern California know what the significance of those words are. It's not asking you `What is your original country of origin,' it's not asking you `Where did you go to school,' it's not asking you `Where do you reside.' It's asking you "What gang do you claim?' Then [defendant] claims K.P. `K.P., mother-fucker,' is what he says. Either `This is K.P.' or `I'm from K.P.' or `It's all about K.P.' He's upping the stakes. He's saying `I'm tough, I'm hard, don't mess with me, man. This is K.P.,' statements by the defendant showing what's in his mind. All the blows are aimed at [Ja's] head. It's not jab, jab. It's not, you know, hey, here we go let's pretend we're fencing. It's at the head. At the head. At the head. We know from looking at the injuries that some of the blows [Ja] was able to block with his left forearm, but, eventually, [defendant] gets through the defense. We know that the force is sufficient to shatter someone's teeth. That is not — tap, tap, tap — it's full force. And again, we talked a little bit about where the blows were directed. A person's head is particularly vulnerable. Yeah, there is bone on the top, but there are soft places at the temple. There are the eyes, which are uniquely vulnerable among human beings. There are the teeth, the ears, the neck, the jaw, the throat. Any one of these areas, if you connect, is going to cause serious injury. You know, you want to hit somebody on the arm. Again, yeah, you may bruise them. If you have...