(Super. Ct. No. 07F11009) APPEAL from a judgment of the Superior Court of Sacramento County, Elena J. Duarte, Judge. Affirmed.
The opinion of the court was delivered by: Robie , J.
CERTIFIED FOR PUBLICATION
The facts of this case are horrendous. For six years, defendant and his wife tortured, beat, and maimed L., who was the great-niece and adopted daughter of defendant's wife. The rationale for these acts was twisted. The great-aunt thought defendant had molested L., and she would beat L. until the girl falsely admitted he had molested her. At that point, defendant would take over the abuse. The years of abuse ended when L. ran away from home, fearing defendant and the great-aunt would make good on their threat to kill her and bury her in the backyard.
There are two appellate issues. One, was there sufficient evidence of defendant's specific intent to maim L.'s ears, lips, and arm to support his three convictions of aggravated mayhem? Defendant argues there was not because the evidence showed he intended only to "attack indiscriminately" rather than maim. We disagree because a defendant's specific intent to maim a body part can be inferred from the repeated systematic abuse to that body part over time.
Two, did the instruction on motive reduce the People's burden of proof because it conflicted with the instruction on torture? Defendant argues that it did because the jury here could have conflated motive and the intent required for torture. We disagree, but suggest a revision to the pattern jury instruction on motive, CALCRIM No. 370.
FACTUAL AND PROCEDURAL BACKGROUND
L. was 17 years old at the time of trial. When she was younger, her great-aunt adopted her and her siblings, and the children moved to Texas to live with her.
When L. was nine, the great-aunt married defendant. Since that time, L. "ha[d] been getting hit a lot." The abuse began when the great-aunt "started accusing [defendant] of molesting [L.]" The accusation was baseless, but stemmed from defendant helping L. with her homework or telling her she was pretty. The great-aunt repeatedly would beat L. until L. said defendant had molested her. At some point, the great-aunt enlisted defendant's help in these beatings, provoking him by forcing L. to repeat in front of him the baseless accusation of molest.
When L. was about 14, she, her siblings, defendant, and the great-aunt moved to Sacramento. The great-aunt pulled L. out of school before she finished her freshman year because "[L.] had scars all over."
When the family was in Sacramento, the great-aunt's brother and girlfriend visited from Texas. Early one morning, the girlfriend saw that the mobile home in the backyard was "moving." The girlfriend asked the great-aunt what was going on, and the great-aunt responded, "[Defendant] is out there whipping that bitch's ass." Soon afterward, defendant emerged from the trailer holding a "two by four" with his "face real red." The girlfriend insisted she be let inside the trailer, and the great-aunt complied. "There was blood everywhere. Dried blood, new blood, old blood, bloody clothes . . . ." Behind a curtain was L. She looked "very frail" and "very scared." She was "bloody," had a "swollen" lip, and "her hair was pulled out [of] her head." The girlfriend asked the great-aunt, "Why? What's the reason?" The great-aunt said it was because defendant had "messed with her sexually, and she was angry with [L.]"
The next evening, the girlfriend saw the great-aunt and defendant beating L. in the kitchen of the house. At first, it was just the great-aunt. She was beating L. with a "two by four," while simultaneously accusing L. of "want[ing] to be with [her] husband" and trying to get L. to admit it. When L. admitted it, the great-aunt called defendant to the kitchen and told him that L. was "still saying . . . you had [a] sexual relationship with her." Defendant became "angry and irate." The great-aunt made L. repeat the false accusation in front of defendant. Defendant then "[h]it [L.] everywhere imaginable." He "hit [her] in the head with at fist like he was fighting a man." He grabbed her and "body slammed" her to the cement floor and then kicked her in her ribs and rear end with steel-toed boots. After they finished beating her, they locked her in a closet and nailed it shut. The next day, the great-aunt pulled L. out of the closet, forced one of L.'s sisters to beat her some more, and then locked L. back in the closet.
In her years of being abused, L. was locked in the closet between 50 and 100 times. Of those times, defendant instigated the confinement 10 to 20 times. The closet was dark, and there was not enough room for her to stretch her legs, so she had to squat. The longest period of confinement was two to three weeks. If she tried to come out, the great-aunt and defendant would beat her.
Once, when L. tried to come out of the closet, the great-aunt "closed the door on [L.] and it caught [L.'s] lip." Thereafter, defendant "always . . . hit [her] in [her] lip [and] that caused [her lip to] split." He also kicked her lips with his steel-toed boots. She ended up with "very deep" cuts and scars all over her lips and four missing teeth.
In addition to a disfigured lip and mouth, L. had a disfigured arm and ears. L.'s ears were both severely scarred by defendant and her great-aunt "repeatedly . . . hit[ing her ears] with [wooden] sticks." L.'s arm was disfigured when defendant "choke slamm[ed] her." They were in the kitchen and defendant accused her of "mess[ing] up the trucks [defendant used in his lawn care service] [be]cause they weren't running." Defendant picked her up by the neck, squeezed her neck, then "body slammed" her on the ground against the floor. Defendant did not take her to the hospital. She was not able to bend or straighten her arm, and it was still stuck at about a 90-degree angle. During the same incident, defendant also hit her, but L. thought it was the body slam that broke her arm. The arm was also where defendant repeatedly beat her using both sides of a hammer.
The last time defendant beat L. with a hammer was Halloween 2007. He used "[t]he side you use to hammer the nail" to hit her on the head "hard" and "left a scar." The rationale for this beating was she had "messed up the truck[s]." The same day, the great-aunt stabbed L. in the left thigh and then locked her in the closet.
While the rest of the family was out trick-or-treating, L. decided to run away. One of her sisters was going to be leaving for Germany to serve three years in the Army, and without that sister (who had often protected L.), L. was afraid something might happen to her. The great-aunt and defendant had both threatened to kill L., and defendant added he would bury her under the mobile home. L. took his threat seriously. She broke out of the closet and left a note for the great-aunt. L. wrote she "wouldn't get [the great-aunt] in trouble," "[defendant] didn't molest [her]," "[she] didn't tear up any of [the great-aunt's] stuff," and [she] wo[uld]n't tell on [the great-aunt.]" L. eventually called a teen safe house and was picked up at a local McDonald's.
L. was taken to the emergency room. The medical director of the child abuse and neglect center (who was a pediatrician) was called in to examine L. because this was a "highly unusual case." L.'s lips had "very deep" cuts and scars all over that were in various stages of healing. This disfigurement was caused by trauma consistent with being kicked in the mouth by a pair of boots. L.'s left arm had such an "extensive fracture" that L.'s surrounding muscles and tendons had calcified. These injuries could have been caused by a large person "forcefully throwing the child to the ground, and piling on top of [her] in a body slam." L.'s hands also had multiple broken bones. L.'s ears were "very scarred and distorted." The disfigurement was likely caused by trauma, some of which had occurred within a few days or weeks and some which were much older. This trauma was called "boxer's ear" ...