People v. Jung

84 Cal. Rptr. 2d 5, 71 Cal. App. 4th 1036

• Court: California Court of Appeal
• Decided: May 25, 1999
• Docket: B114721
• Status: Published

Opinions

Opinion

GRIGNON, J.

Defendant and appellant Dale J. Jung appeals from a judgment following two jury trials. In the first jury trial, defendant Jung was convicted of kidnapping (Pen. Code, § 207, subd. (a))¹ and mayhem (§ 203) and a great bodily injury allegation was found to be true (§ 12022.7, subd. (a)). The jury was unable to reach a verdict on the charge of torture (§ 206). In the second jury trial, he was convicted of torture. He was sentenced to life in prison. He contends the evidence was insufficient to support his conviction for torture; his life sentence constitutes cruel and unusual punishment; the trial court erred when it denied his request for a mistrial; and the trial court erred when it denied his requests for a continuance and to reopen, and struck the testimony of a witness.

Defendant and appellant Thi Van Nguyen appeals from a judgment following a jury trial. He was tried with defendant Jung in defendant Jung’s second jury trial and was convicted of kidnapping, mayhem, and torture and a great bodily injury allegation was found to be true. He was sentenced to life in prison. He contends the evidence was insufficient to support his conviction for torture; the trial court erred when it denied his request for a mistrial; and the trial court erred when it denied his requests for a continuance and to reopen, and struck the testimony of a witness.

The prosecution raises issues concerning the restitution fines.

In the published portion of this opinion, we address the sufficiency of the evidence as to defendants’ torture convictions. We conclude substantial evidence supports the finding defendants intended to cause the victim cruel or extreme pain and suffering. In the unpublished portion of the opinion, we address the parties’ remaining contentions. We modify the restitution fines and affirm.

Facts²

Fifteen-year-old Donald Hyon was a member of an Asian street gang called Jef-Rox. Defendant Jung was a member of another Asian street gang called Rebel Boys, and defendant Nguyen was a member of a third Asian street gang called Pinoy Real. Rebel Boys and Pinoy Real were allies, and rivals of Jef-Rox. In the evening hours of November 4, 1994, an altercation occurred between members of Jef-Rox and members of Rebel Boys and Pinoy Real. Hyon chased and beat defendant Nguyen. A short time later, defendants and others trapped Hyon in the garage of an apartment building. They beat and kicked Hyon, grabbed him by his hair and forced him to disrobe. They pulled the naked and struggling Hyon from the garage and pushed him into the backseat of defendant Jung’s car, a black Acura Integra, where he was bound hand and foot and blindfolded. Defendant Nguyen beat Hyon with his fists. After some minutes of driving, they stopped the car, removed Hyon from the backseat, and placed him in the trunk. They drove for an additional period. Hyon was removed from the car and taken to a room in a residence.

The five to eight occupants of the room were laughing and jeering. They told Hyon he was going to die. They shoved Hyon onto a couch. They used his body as an ashtray, burning him with cigarettes on both shoulders three to four times. They beat him with their fists and kicked him. They repeatedly hit him on the head and in the face and slapped him. They laid him on the floor and five or six of them jumped on him from the couch. They forced him to drink urine. They bit him on his upper thighs and scratched him. They gave him hickeys on his neck. They put Ben-Gay on his penis, which hurt. They tattooed his back, legs, and arms extensively with a tattoo machine. The needle was painful. After tattooing him, they poured rubbing alcohol over his fresh wounds, which stung. They wrote on his body with magic markers. They shaved the hair on his head. They hit him with hard objects on his backside and legs. They whipped him with a cloth. They placed a hard object between his buttocks. They rubbed and played with his penis and attempted to have him ejaculate. They photographed him and forced him to dance and pose. They dressed him in girl’s clothing. They continued to beat him. Hyon curled into a protective fetal position, yet they continued to kick him. On two occasions, defendant Jung told the others to stop hitting Hyon, but defendant Jung made the statements in a sarcastic manner and the beatings did not stop. The attacks continued for several hours, after which they put Hyon in a van, drove him to another location, and released him, still bound, blindfolded, and dressed in girl’s clothing. They threatened to kill him and his family and bum his house down if he went to the police. The events of November 4, 1994, had been very scary. Hyon had been in fear.

The incident was reported to the police. Hyon was physically shaken up and bore lumps, tattoos, and hickeys on his body. Because of threats made by defendants and his embarrassment and shame, Hyon downplayed what had happened to him when he spoke to the police. He was uncooperative, reluctant, and resistant. He felt as if his bones were broken, but told the police he felt okay. Hyon refused the police’s offer of medical treatment, but saw his pediatrician the next day. At the time of trial, Hyon still bore the tattoos. The photographs taken of Hyon by his attackers at the time of the incident were found in a photo album in defendant Jung’s bedroom. The photographs in the album had been captioned. The captions included, “We Offer Only One Type of Treatment,” “Cruelty to Animals Leads to Worse,” “Battered, Raped, and Veiled,” and “Weakness.” The photographs reveal a huddled, crying, cringing, naked, blindfolded Hyon.

The defense was misidentification as to defendant Nguyen. As to defendant Jung, the defense was that he had not participated in the torture.

Discussion

I. Sufficiency of the Evidence — Torture

Defendants contend the evidence is insufficient to support a finding they intended to cause Hyon cmel or extreme pain and suffering. We disagree.

“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738,16 A.L.R.4th 1255].) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560].) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792 [42 Cal.Rptr.2d 543, 897 P.2d 481].) ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]”’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11 [82 Cal.Rptr.2d 413, 971 P.2d 618].)

Section 206 provides: “Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. flQ The crime of torture does not require any proof that the victim suffered pain.” Defendants do not challenge the sufficiency of the evidence as to the infliction of great bodily injury, nor do they challenge the sufficiency of the evidence as to the purpose of revenge, Their sole sufficiency of the evidence challenge relates to the intent to cause cruel or extreme pain and suffering.

“In section 206, the word ‘cruel’ modifies the phrase ‘pain and suffering.’ In at least two other cases, courts have held that ‘cruel pain’ is the equivalent to ‘extreme’ or ‘severe’ pain. [Citations.] This definition comports with the common dictionary definition of ‘cruel’ [citation], and, in our view, is a reasonable and practical interpretation of that phrase [citation].” (People v. Aguilar (1997) 58 Cal.App.4th 1196, 1202 [68 Cal.Rptr.2d 619].)

Defendants argue the evidence establishes an intent to humiliate, but not an intent to cause severe pain and suffering. Although some of the abuse inflicted on Hyon appears to have been intended to humiliate him, such as dressing him in women’s clothing, forcing him to drink urine, and forcing him to dance and pose for photographs, the evidence also supports an intent to cause severe pain and suffering. Indeed, there can be no other explanation for the cigarette bums, the application of Ben-Gay to Hyon’s penis, the pouring of rubbing alcohol over Hyon’s fresh wounds, the beating, the biting, and the kicking. That defendants may have intended to humiliate Hyon, as well as cause him severe pain and suffering, does not defeat their convictions for torture. (Cf. People v. Healy (1993) 14 Cal.App.4th 1137, 1141 [18 Cal.Rptr.2d 274].) The evidence clearly supports a finding that in retaliation for Hyon’s earlier attack on defendant Nguyen, defendants intended to cause Hyon severe pain and suffering.³

Defendants argue the nature of the acts inflicted on Hyon is not comparable to the nature of the acts involved in other reported torture cases. For example, in People v. Barrera (1993) 14 Cal.App.4th 1555 [18 Cal.Rptr.2d 395], the defendant, in order to obtain the victim’s cooperation and property, shot a robbery victim in the leg causing an open fracture of his tibia and thereafter forced the robbery victim to walk 15 feet to a shed to obtain a key. The victim was hospitalized for three days and his leg was cast. In People v. Healey, supra, 14 Cal.App.4th 1137, the defendant, over a two-week period, beat and battered the victim. “He split her lips, broke her ribs, and stomped on her. He struck her in the jaw, back, arms, neck repeatedly. He flung her in the air so that she landed on the back of her head on the floor. She sustained a fractured jaw, ankle fractures, multiple rib fractures and bruises to her face and torso.” (Id. at p. 1139.) In People v. Jenkins (1994) 29 Cal.App.4th 287 [34 Cal.Rptr.2d 483], over a six-month period, defendant beat the victim repeatedly with various objects causing scars, lacerations, bleeding, bruising, broken bones, and a punctured lung. She was hospitalized for eight days.⁴

We agree Hyon apparently suffered no broken bones or injuries to vital organs. He was, however, greatly disfigured and scarred, not to mention severely emotionally traumatized. At the second trial in 1997, he was still unable to testify to the events in 1994 without a loss of composure. That Hyon suffered pain from the cigarette bums, the tattooing, the Ben-Gay and rubbing alcohol applications, the beating, the kicking, and the biting is self-evident, although the severity of the pain was not expressly acknowledged by Hyon. In any event, defendants wrongfully place the emphasis on the injuries or pain suffered by the victim. (People v. Davenport, supra, 41 Cal.3d at p. 268.) Section 206 expressly eliminates the pain of the victim as an element of the offense. In addition, all that is required as to the nature of the injury is “great bodily injury,” i.e., “a significant or substantial physical injury.” (§ 12022.7, subd. (e).) Abrasions, lacerations, and braising can constitute great bodily injury. (People v. Escobar (1992) 3 Cal.4th 740, 752 [12 Cal.Rptr.2d 586, 837 P.2d 1100].) The emphasis is rightfully placed on the perpetrator, one who for revenge or other prohibited purpose, inflicts great bodily injury on the victim and intends to cause the victim severe pain and suffering. That other victims of torture may have suffered more than the victim in this case sheds no light on the sufficiency of the evidence of defendants’ intent to cause Hyon severe pain and suffering. Here, the circumstances of the offense, including the forced disrobing, the confinement in the trunk of the car, the isolated location, the multiple attackers, the binding of hands and feet, the blindfolding, and the duration of the victim’s ordeal, establish the intent to cause severe pain and suffering.

The intent of the perpetrator can be established not only by the circumstances of the offense, but also from other circumstantial evidence. (People v. Raley (1992) 2 Cal.4th 870, 888-889 [8 Cal.Rptr.2d 678, 830 P.2d 712]; People v. Mincey, supra, 2 Cal.4th at p. 433.) The other circumstantial evidence in this case is found in the photographs and the later-applied captions. References to violence and cruelty lead to the reasonable inference of intent to cause severe pain and suffering.

We conclude the evidence is sufficient.

II.-V.

*

Disposition

The judgments of conviction are modified to show a parole revocation restitution fine of $10,000, suspended, and the clerk of the superior court is directed to correct the abstract of judgment to reflect both restitution fines and to forward the corrected abstract of judgment to the Department of Corrections. The judgments are affirmed in all other respects.

Turner, P. J., concurred.

1 All further statutory references are to the Penal Code, unless otherwise noted.

2 We have taken judicial notice of the trial court exhibits.

3 We note that the jury was instructed as to a lesser offense of assault with a deadly weapon or with force likely to produce great bodily injury.

4 First degree murder by torture cases are inapposite because the torture must have caused the death. (§ 189; People v. Proctor (1992) 4 Cal.4th 499, 530 [15 Cal.Rptr.2d 340, 842 P.2d 1100]; People v. Davenport (1985) 41 Cal.3d 247, 267 [221 Cal.Rptr. 794, 710 P.2d 861]; People v. Wiley (1976) 18 Cal.3d 162, 168 [133 Cal.Rptr. 135, 554 P.2d 881].) Obviously, torture which causes the death of the victim is by its very nature an extreme version of torture. (Cf. People v. Mincey (1992) 2 Cal.4th 408, 432 [6 Cal.Rptr.2d 822, 827 P.2d 388].)

See footnote, ante, page 1036.