Filed 9/12/13 P. v. Winter CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062455
Plaintiff and Respondent,
v. (Super. Ct. No. SCE309006)
JARED WINTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Allan J.
Preckel, Judge. Affirmed as modified with directions.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Bradley A. Weinreb and William
M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
Jared Winter appeals from a judgment convicting him of offenses arising from his
attack on his mother, including attempted murder, torture, mayhem, battery with serious bodily injury, and assault by means of force likely to produce great bodily injury
(aggravated assault). He raises the following contentions: (1) Battery with serious bodily
injury and aggravated assault are lesser included offenses of mayhem; hence, he
improperly sustained multiple convictions based on necessarily included offenses and the
court erred in failing to instruct the jury on lesser included offenses; (2) there was
insufficient evidence to support intent to torture; (3) his counsel provided ineffective
representation by (a) failing to request instructions on the defense of voluntary
intoxication, and (b) failing to move to suppress his postarrest statements on Miranda1
grounds; and (4) the trial court was required to stay the sentence on the attempted murder
count because his attempted murder and torture offenses involved the single objective of
killing the victim.
The Attorney General concedes that battery with serious bodily injury is a lesser
included offense of mayhem, and we accept this concession. Accordingly, we modify the
judgment to strike the conviction of battery with serious bodily injury. We find no other
reversible error, and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On February 27, 2011, defendant, age 33, brutally attacked his 65-year-old mother
(Melinda Winter) at their home. Defendant had lived with his mother most of his life; he
was unemployed and his mother supported him. Melinda testified that on the morning of
the attack, defendant asked her for money for gas and food from a "fast food" place. She
1 Miranda v. Arizona (1966) 384 U.S. 436. 2 gave him her credit card and a $20 bill, and asked him to bring her the change. At 9:30
a.m., when defendant was back at home, Melinda went to his bedroom where he was
lying on his bed, and asked for her change. Defendant, as if "his legs were flying
towards" her, kicked Melinda in the center of her chest, saying, " 'I'll show you your
change.' "
Melinda blacked out and as she was "coming to," she was bent over at defendant's
bedroom doorway, feeling "really woozy." Defendant flung her at the bedroom door, and
her face hit the door. She blacked out again, and when she regained consciousness, she
was standing up and defendant was hitting her face with his fists. She was trying to
protect her face with her arms, and she was backing up in the direction of the front door
to try to get away from him. Defendant hit her repeatedly along the side of her head and
on her eye, and also hit her arms and legs.
At one point when defendant punched her in the side of her body, she fell down
and urinated. He became even angrier and began to hit her harder, saying, " 'You pissed
all over me." At another point when she put up her hands to try to thwart the assault,
defendant "got mad" and she felt "a searing pain on [her] little finger" as defendant bit it.
Defendant kept repeating, " 'die, bitch, die.' "
Upon another revival after blacking out, Melinda was lying by a pillar in the living
room area. Defendant was choking her with his hands around her neck, saying, " 'Die
whore. Die, bitch.' " When she regained consciousness after again passing out,
defendant was "lifting [her] head up and down against the pillar," saying " 'Die, bitch,
3 die,' " and " 'I'm going to show you.' " The back part of her head and her neck were
hitting the pillar.
After blacking out and waking again, Melinda could hardly open her eyes.
Defendant appeared angry because she had regained consciousness. He yelled, " 'I'll
show you,' " and left the area. When he returned he had "something gold in his hand."
As Melinda was lying on the floor, defendant repeatedly hit her with the gold object all
over her body, including her face, arms, legs, and ribs.
At one point while Melinda was lying on the floor, defendant told her he was
going to kill her. Every time she regained consciousness, defendant was "yelling at [her],
getting mad" and he would start hitting her harder. He would say " 'die bitch, die,' and
'die, whore, die.' " She felt he was angry that she had not died yet.
Towards the end of the attack, defendant was lying or sitting on top of Melinda
with something covering her face, and she was suffocating and could not breathe. He
was continuing to say, " 'die.' " Melinda managed to turn her head a little and get some
air. She "just wanted to have it all end" and decided to pretend to be dead so he would
stop hitting her. She let the blood run out of her mouth and lay as still as she could.
Defendant got off her, and she heard him moving around. She passed out, and when she
awoke she heard the voice of her neighbor, Carolyn Smith. Melinda felt pain "all over";
"every part of [her] hurt"; and she could not see. She passed out again, and when she
awoke she was in the hospital.
Meanwhile, at about 10:00 a.m. that morning, defendant went to the home of the
neighbors, Rodgers and Carolyn Smith. Defendant had blood on his face, arms, and
4 hands, and he told Rodgers his mother had tried to kill him. Rodgers told Carolyn to call
911, and Rodgers went with defendant and sat on Rodgers's front lawn. Rodgers testified
defendant was agitated; he would repeatedly flop on his back and then sit up, and he was
moving his arms around. When Rodgers asked defendant if he was taking medication or
was on drugs, defendant responded no; however, defendant told Rodgers that he had
" 'consumed a lot of alcohol.' " After Carolyn called the police, she want to check on
Melinda, and then alerted her husband that Melinda had been severely beaten.
When the police arrived, defendant was lying on his back on Rodgers's front lawn.
An officer smelled alcohol on his breath. Defendant had blood on both hands; two small
cuts; and a swollen right hand. When he was being booked into jail, the nurse asked him
if he had any injuries. Defendant told her his hand "kind of hurt." When the nurse asked
him what happened to his hand, he answered, " 'I beat the shit out of a dummy doll.' " A
police officer made a comment to defendant that it looked like he was trying to kill his
mother. Defendant nodded his head affirmatively and said " 'I can't believe she's still
alive.' " While searching defendant's room, the police found two empty vodka bottles
under his mattress and nitrous oxide cartridges.
At the scene of the attack, Melinda was semiconscious, bleeding, and her face was
so swollen she could not open her eyes. She suffered severe facial injuries and bruising
and swelling all over her body. She had a laceration on her little finger "that went almost
to the bone."
Two days after the attack while she was in intensive care, her eyes were still
swollen shut; she was wearing a neck brace; she was in a lot of pain; and it was difficult
5 for her to speak. A bone in her jaw was broken, which made her unable to open her jaw
to eat and caused hearing loss from swelling in her ear. About five days after the attack,
she was able to see again, but her vision was impaired; for example, she would see five
objects instead of one. About two months after the attack, she saw her face for the first
time as she passed a mirror while being pushed in a wheelchair. Her face looked "huge";
all "puffed up high" and "everything was all black and blue." Her teeth were shattered;
one tooth broke off at the gum line; and a bone in her mouth was cracked. Her
examining physician determined she had sustained bleeding of the brain; numerous
fractures (including to her right eye area, her left ribs, her sternum, and her backbone
area); a two-centimeter bite laceration on her little finger; and swelling and bruising of
the scalp.
Melinda was in the hospital for about two months, including in a rehabilitation
unit where she received physical therapy and used a walker. When she returned home,
for about two or three months she had a hospital bed and a portable toilet next to her bed;
she needed assistance to stand; and family or friends stayed with her 24 hours a day.
By the time of trial almost one and one-half years later, Melinda still felt pain
upon awakening; had bruising on her shinbone; had hearing loss; and had to wear glasses
with prism lenses to correct double vision. Due to the attack, she lost two inches in her
height and could not sit for lengthy periods of time without back pain.
Jury Verdict and Sentence
The jury found defendant guilty of attempted murder, torture, mayhem, elder
abuse, battery with infliction of serious bodily injury, assault by means of force likely to
6 produce great bodily injury, and making a criminal threat. It also found true allegations
that he personally inflicted great bodily injury.
The trial court sentenced defendant to an indeterminate life term for the torture
conviction, plus a determinate 12-year sentence (consisting of nine years for the
attempted murder conviction and three years for the accompanying personal infliction of
great bodily injury enhancement).2 The sentences for the remaining counts were stayed.
DISCUSSION
I. Lesser Included Offenses
Defendant argues that battery with infliction of serious bodily injury and assault
by means of force likely to produce great bodily injury are lesser included offenses of
mayhem. Accordingly, he contends (1) he could not properly be convicted of the battery
and assault counts, and (2) the trial court had a sua sponte duty to instruct the jury that
these were necessarily included offenses.3
A. Multiple Conviction Bar
A defendant may not receive multiple convictions for a single act or course of
conduct based on necessarily included offenses. (People v. Reed (2006) 38 Cal.4th 1224,
1227; People v. Sanders (2012) 55 Cal.4th 731, 736.) A lesser offense is necessarily
included within a greater offense if the greater offense cannot be committed without also
2 The trial court struck the personal infliction of great bodily injury enhancement accompanying the torture count.
3 The terms "lesser included offense" and "necessarily included offense" are used interchangeably. (People v. Sloan (2007) 42 Cal.4th 110, 115, fn. 2.)
7 committing the lesser offense. (People v. Reed, supra, at p. 1227.) When determining
whether a defendant may sustain multiple convictions based on multiple charged
offenses, we apply the elements test. (Id. at pp. 1229-1231.) Under the elements test, an
offense is necessarily included in another offense if all the elements of the lesser offense
are included in the elements of the greater offense, so that the greater offense cannot be
committed without also necessarily committing the lesser offense. (People v. Moon
(2005) 37 Cal.4th 1, 25.)
The elements of mayhem include (1) an act of physical force, (2) resulting in an
injury which causes a body part to be lost, disabled, disfigured, or rendered useless, and
(3) done maliciously, that is, with an intent to vex, annoy, or injure. (Pen. Code,4 § 203;
People v. Santana (2013) 56 Cal.4th 999, 1003, 1007; People v. Ausbie (2004) 123
Cal.App.4th 855, 861.) Battery consists of an unlawful use of force to touch a person,
and the slightest touching suffices to establish the offense. (§ 242; People v. Marshall
(1997) 15 Cal.4th 1, 38; People v. Colantuono (1994) 7 Cal.4th 206, 214, fn. 4.) The
Attorney General concedes that battery with serious bodily injury is a lesser included
offense of mayhem. We accept this concession. (People v. Ausbie, supra, 123
Cal.App.4th at pp. 859, 860, fn. 2; see People v. Picklesimer (2010) 48 Cal.4th 330, 341-
4 Subsequent unspecified statutory references are to the Penal Code.
8 342 [court accepts People's concession without deciding issue].)5
However, a defendant who commits mayhem has not necessarily committed
assault by means of force likely to cause great bodily injury (aggravated assault). Assault
occurs when the defendant initiates force likely to result in an unlawful touching, and
aggravated assault occurs when the force used is likely to produce great bodily injury.
(§ 245, subd. (a)(4); People v. Colantuono, supra, 7 Cal.4th at pp. 216-217 & fn. 7;
People v. Yeats (1977) 66 Cal.App.3d 874, 878.) Unlike aggravated assault, mayhem
does not require force likely to cause great bodily injury; that is, the offense is not
defined by the degree of force but by the nature of the injury. (People v. Ausbie, supra,
123 Cal.App.4th at p. 861.) For the offense of mayhem, a defendant might
"maliciously—that is, with an intent to vex, annoy, or injure another—use force less than
that likely to produce great bodily injury but nonetheless produce a disfiguring result.
Though the disfiguring result would be considered great bodily injury [citation], the act
that produced it would not constitute an assault by means of force likely to produce great
5 The multiple conviction bar applies when the defendant is convicted of multiple necessarily included offenses for the same act or course of conduct. (People v. Sanders, supra, 55 Cal.4th at p. 736; People v. Greer (1947) 30 Cal.2d 589, 600-601.) The prosecution did not premise the mayhem and battery counts on distinct acts or courses of conduct; accordingly, we assume the counts involved a single course of conduct. We note that in People v. Santana, supra, 56 Cal.4th 999, the California Supreme Court recently held that serious bodily injury is not a separate element of mayhem that needs to be instructed upon and separately proven. (Id. at pp. 1009-1011, & fn. 5.) However, Santana did not evaluate whether mayhem and battery with serious bodily injury are necessarily included offenses; accordingly, this decision does not preclude us from accepting the Attorney General's concession. 9 bodily injury." (Id. at p. 862.) Thus, a defendant who commits mayhem has not
necessarily committed aggravated assault.
To support his position that the commission of mayhem necessarily constitutes the
commission of aggravated assault, defendant cites People v. De Angelis (1979) 97
Cal.App.3d 837. The De Angelis court held: "An assault is necessarily included in
mayhem where the assault is a continuing event and the mayhem results during the
course thereof." (Id. at p. 841.) De Angelis's holding applies to the offense of simple
assault, which is committed upon the use of force likely to cause the slightest touching,
not to the offense of aggravated assault, which requires force likely to produce great
bodily injury. (People v. Ausbie, supra, 123 Cal.App.4th at p. 860 & fn. 2; People v.
Quintero (2006) 135 Cal.App.4th 1152, 1169.) De Angelis does not support defendant's
position.
Defendant was properly convicted of mayhem and assault by means of force likely
to produce great bodily injury.
B. Sua Sponte Duty To Instruct on Lesser Included Offenses
Defendant argues his mayhem conviction must be reversed because the trial court
did not instruct the jury that battery with serious bodily injury and assault by means of
force likely to cause great bodily injury are lesser included offenses of mayhem. Based
on our holding that aggravated assault is not a lesser included offense of mayhem under
10 the elements test, we address this contention only with respect to the battery with serious
bodily injury offense.6
A trial court has a sua sponte duty to instruct on uncharged lesser included
offenses if there is substantial evidence the defendant is guilty only of the lesser offense.
(People v. Birks, supra, 19 Cal.4th at p. 118.) The rule requiring instruction on
uncharged lesser included offenses "prevents either party, whether by design or
inadvertence, from forcing an all-or-nothing choice between conviction of the stated
offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a
verdict, within the charge chosen by the prosecution, that is neither 'harsher [n]or more
lenient than the evidence merits.' [Citation.]" (Id. at p. 119.) Here, defendant's
complaint concerns the failure to instruct on a charged lesser included offense, not an
uncharged one. Because the lesser included offense of battery with serious bodily injury
was presented to the jury as a verdict option in a separate count, there was no concern
that the jury was not provided with the range of verdict options warranted by the
evidence.
However, to the extent the charges included necessarily included offenses, we
agree with defendant that the trial court was required to instruct the jury that it could not
convict him of both a greater and lesser included offense. (See CALCRIM Nos. 3516,
6 Defendant does not assert that the accusatory pleading test, in addition to the elements test, should be used to determine the instructional duty for, as here, charged necessarily included offenses. (See People v. Reed, supra, 38 Cal.4th at pp. 1229-1231 [accusatory pleading test appropriate to determine whether there has been notice of uncharged lesser included offense as alternative to charged greater offense]; People v. Moon, supra, 37 Cal.4th at pp. 25-26; People v. Birks (1998) 19 Cal.4th 108, 117.) 11 3519; see also People v. Greer, supra, 30 Cal.2d at pp. 598-599.) Based on the Attorney
General's concession that the battery count was a lesser included offense of the mayhem
count for purposes of the multiple conviction bar, any instructional error in this regard is
cured by our striking of the battery conviction from the judgment. Additionally, this is
not a case where the court was required to instruct the jury on how it should return its
verdicts in the event it could not reach a verdict on the greater offense. (See People v.
Fields (1996) 13 Cal.4th 289, 309-310 [although jury may consider greater and lesser
included offenses in any order, if jury deadlocks on greater offense, trial court must
instruct that it cannot accept guilty verdict on lesser offense unless jury acquits on greater
offense].) Here, there was no deadlock on the mayhem offense and thus there was no
need to instruct on this point.
Defendant argues the trial court's instructions were deficient because they did not
include a "Dewberry" admonition that if the jury has a reasonable doubt as to whether the
greater or lesser offense was committed, it must find the defendant guilty only of the
lesser offense. (People v. Dewberry (1959) 51 Cal.2d 548, 555.) The courts have
recognized that some type of instruction should be given that directs the jury "what to do
if it has a reasonable doubt as to whether the defendant committed the greater or a lesser
offense." (People v. Crone (1997) 54 Cal.App.4th 71, 76-77; People v. Barajas (2004)
120 Cal.App.4th 787, 793.) The instructions given here sufficed to convey the concept
that the jury could convict only of the lesser offense if it had doubt concerning the greater
offense. Regarding the concept of proof beyond a reasonable doubt, the jury was told:
"The defendant in a criminal case is presumed to be innocent. This presumption requires
12 that the People prove the defendant guilty beyond a reasonable doubt. . . . [¶] . . . [¶]
Unless the evidence proves the defendant guilty of a charge beyond a reasonable doubt,
he is entitled to an acquittal and you must find him not guilty." (Italics added; see
CALCRIM No. 220.) Also, the jury was instructed that it must consider each count
separately and return a separate verdict for each count: "Each of the counts charged in
this case is a separate crime. You must consider each count separately and return a
separate verdict for each one. The defendant may be found guilty of none, some, or all
of the charged crimes." (Italics added; see CALCRIM No. 3515.)
These instructions told the jury that (1) it must consider and return a verdict for
each count separately, and (2) if it has doubts about guilt on a charge, it must return a not
guilty verdict. Following these instructions, the jury necessarily would have understood
that it must consider both the mayhem and battery counts, and if it had a doubt as to the
mayhem count, it could not return a guilty verdict for that count.
For the same reasons, even assuming arguendo the trial court was required to
explicitly instruct the jury that if it had a doubt that defendant committed the greater or
lesser offense it must find him guilty solely of the lesser, the error was harmless. There is
no reasonable probability the jury thought it could convict defendant of both the mayhem
and battery counts even though it was not sure whether his acts constituted mayhem or
just battery with serious bodily injury. (See People v. Crone, supra, 54 Cal.App.4th at p.
78 [reasonable probability standard applies to instructional error concerning how to
handle necessarily included offenses].) As stated, the jury was instructed that it must
evaluate each count separately and it could return a guilty verdict only if the charge was
13 proven beyond a reasonable doubt. We presume the jury followed these instructions.
(People v. Gray (2005) 37 Cal.4th 168, 217.) Based on the instructions provided to the
jury, if any juror had reasonable doubt about the mayhem charge, the jury would not have
returned a guilty verdict for this count.
There was no prejudice from the failure to instruct on necessarily included
offenses.
II. Sufficiency of Evidence of Torture
Defendant argues the torture conviction must be reversed because the evidence
does not show he intended to cause cruel or extreme pain and suffering for a sadistic
purpose. He asserts that although he brutally beat Melinda, his acts and words show he
intended only to kill her, not torture her.
The offense of torture is committed when a person inflicts great bodily injury with
the intent to cause cruel or extreme pain and suffering for the purpose of revenge,
extortion, persuasion, or any sadistic purpose. (§ 206.) The infliction of severe wounds
does not necessarily prove an intent to torture because horrible wounds can reflect an
intent to kill or a passionate explosion of violence rather than a sadistic intent to inflict
suffering. (People v. Mungia (2008) 44 Cal.4th 1101, 1137; People v. Elliot (2005) 37
Cal.4th 453, 467.) However, a finding of both intent to torture and intent to kill may be
supported by facts showing the defendant acted " 'with a "sadistic intent to cause the
victim to suffer pain in addition to the pain of death." [Citation.]' " (People v. Mungia,
supra, 44 Cal.4th at p. 1136.) For example, an intent to torture may be inferred from
14 circumstances showing "the defendant deliberately inflicted nonfatal wounds or
deliberately exposed the victim to prolonged suffering." (Id. at p. 1137.)
In reviewing a challenge to the sufficiency of the evidence, we consider the entire
record in the light most favorable to the judgment to determine whether a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. (People v. Elliot,
supra, 37 Cal.4th at p. 466.) Melinda testified that during the early stages of the attack,
defendant repeatedly hit her in the face with his fists. At one point when she raised her
hands in response to the assault, he bit her finger "almost to the bone," which caused her
"searing pain." Also, when Melinda awoke after being unconscious, defendant told her
he would " 'show' " her; he left the area and retrieved an object; and he then repeatedly hit
her all over her body with the object. The jury could reasonably infer that defendant's
beating of his mother's face, rather than confining his attack to areas of her body more
susceptible to fatal wounds, indicated that he wanted her to suffer as well as die. Also,
the jury could reasonably deduce that defendant bit her finger and hit her with the object
to make her suffer because she was resisting the attack and not dying like he wanted her
to. Further, defendant's act of leaving the area to retrieve the object supports that he
engaged in calculated conduct reflecting a sadistic intent in addition to an intent to kill.
These factual circumstances support the jury's finding that defendant had the intent to
cause cruel or extreme pain and suffering for a sadistic purpose.
To support his challenge to the torture verdict, defendant cites the evidence
showing that during the attack he repeatedly said he wanted his mother to die and he
stopped attacking her when she pretended to be dead. These circumstances, which show
15 an intent to kill, do not refute the other circumstances described above that support that
he also intended to make her suffer for a sadistic purpose.
III. Claims of Ineffective Assistance of Counsel
Defendant argues his counsel provided ineffective representation because (1) he
did not request instructions on voluntary intoxication to negate the required specific
mental states for the charges, and (2) he did not move to suppress defendant's postarrest
statements on Miranda grounds.
To show ineffective representation, the defendant must establish that counsel's
performance fell below an objective standard of reasonableness, and that there is a
reasonable probability that absent counsel's deficiency the result would have been
different. (People v. Weaver (2001) 26 Cal.4th 876, 925.) A reasonable probability in
this context means a reasonable chance, more than an abstract possibility. (Richardson v.
Superior Court (2008) 43 Cal.4th 1040, 1050-1051.) There is a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance, and
we do not second-guess reasonable tactical decisions in the harsh light of hindsight.
(People v. Weaver, supra, at pp. 925-926.) When the record on appeal does not reveal
counsel's trial tactics, we will not find ineffective assistance "unless there could be no
conceivable reason for counsel's acts or omissions." (Id. at p. 926.) The courts recognize
that " ' "[t]here are countless ways to provide effective assistance in any given case. Even
the best criminal defense attorneys would not defend a particular client in the same way.
[Citation.]" ' " (People v. Wrest (1992) 3 Cal.4th 1088, 1115.) Even debatable trial tactics
do not constitute ineffective representation. (People v. Weaver, supra, 26 Cal.4th at p.
16 928.) Further, if the record does not show prejudice from counsel's alleged deficiency,
we may reject the claim without determining whether counsel's performance was
deficient. (People v. Sapp (2003) 31 Cal.4th 240, 263.)
A. Failure To Request Instructions on Voluntary Intoxication
Defendant argues his counsel provided ineffective representation by failing to
request that the jury be instructed on the defense of voluntary intoxication to negate the
specific intents or mental states required for the charges, including intent to kill and intent
to torture. He contends that because there was evidence that he was intoxicated, his
counsel could not have had a reasonable, tactical reason for not requesting instruction on
intoxication.
Evidence of voluntary intoxication may be used to show the defendant did not
have the specific mental state required for commission of the crime. (People v. Horton
(1995) 11 Cal.4th 1068, 1118-1119.) A defendant is entitled to an instruction on
voluntary intoxication if there is evidence from which a reasonable jury could conclude
the defendant's mental state was so impaired that he did not entertain the required
criminal intent. (People v. Williams (1997) 16 Cal.4th 635, 677-678; People v. Marshall
(1996) 13 Cal.4th 799, 848.) However, a mere showing of drug or alcohol consumption
and some impairment, without any showing of effect on the defendant's state of mind, is
not enough to require an intoxication instruction. (Marshall, supra, at p. 848.)
In closing arguments to the jury, defense counsel conceded that defendant was
trying to kill his mother because he was in a rage, but argued he did not intend to torture
her. Although defense counsel commented that defendant's " 'inexplicable . . . rage' "
17 may have been precipitated by drinking or the consumption of some other substance,
defense counsel did not attempt to argue that defendant was so inebriated that he could
not formulate any of the required specific intents or mental states. Rather, defense
counsel urged the jury to reject the torture allegation because the evidence did not show
beyond a reasonable doubt that defendant wanted to sadistically inflict pain, not just beat
his mother to death.
Defense counsel's decision to concede intent to kill and dispute intent to torture
was a reasonable tactical decision. There was overwhelming evidence that defendant
intended to kill his mother based on the severity of the attack and his repeated statements
reflecting this intent. Further, the maximum sentence on the second degree attempted
murder charge, including the personal infliction of great bodily injury enhancement, was
a determinate term of 12 years (§§ 664, subd. (a); 190, subd. (a); 12022.7, subd. (a)),
whereas the sentence for the torture charge was an indeterminate life term (§§ 206.1).
Defense counsel could reasonably elect to concede the readily-established attempted
murder charge in the hopes that the jurors would be satisfied with this conviction and
defendant would avoid the harsher punishment arising from a torture conviction. (See
People v. Mitcham (1992) 1 Cal.4th 1027, 1060-1061.)
Once counsel elected to concede attempted murder, pursuit of a voluntary
intoxication defense would have required counsel to try to convince the jury that although
defendant's alcohol consumption did not prevent him from formulating intent to kill, it
did prevent him from formulating intent to torture and the other specific intents or mental
states required for the charges. Counsel could have reasonably concluded that this
18 approach might run contrary to the jurors' common sense and undermine counsel's
attempt to garner credibility with the jurors by conceding the attempted murder charge.
Further, defense counsel could have assessed that a voluntary intoxication defense
did not have much chance of succeeding, and thus it was not worth pursuing the defense
at the risk of diminishing the viability of the strategy based on a concession of attempted
murder. Although there was strong evidence that defendant had consumed alcohol, as
shown by the officer who smelled alcohol on his breath at the scene and defendant's
statement to the neighbor, there was little evidence that defendant's state of mind was so
altered that he could not engage in the level of thinking required to formulate a specific
intent such as intent to torture. To the contrary, defendant engaged in conduct reflecting
that he knew what he was doing; i.e., he interrupted the attack on his mother to retrieve
an object and then used the object to continue the attack. Also, he went to the neighbor's
home and formulated a story that could reflect a conscious attempt to exonerate himself
or diminish his culpability, i.e., saying his mother tried to kill him.
In addition to the trial evidence showing defendant's alcohol consumption,
defendant cites a mental health report included in the appellate record which states
defendant reported that he drank a pint of vodka the morning of the attack, and he
sobered up the next day. The report states that a video recorded at the police station
contains images in which defendant laughs inappropriately, apologizes for laughing,
grimaces and shakes his head, and makes "some statements that make little sense."
However, the report states that the officers felt defendant was "generally coherent." This
information supports that defendant was under the influence of alcohol, but in light of the
19 evidence showing he engaged in purposeful and cognitively-aware conduct during and
after the offense, defense counsel could reasonably conclude that, on balance, it did not
support a strong intoxication defense.
Based on defense counsel's strategic decision to concede intent to kill and the
dearth of evidence supporting that defendant did not formulate the required specific
mental states, the record does not show that counsel could not have made a reasonable
tactical decision to forego an intoxication defense. Alternatively, there is no reasonable
probability the outcome would have been different given the strength of the evidence that
defendant's alcohol consumption did not impair his mental functioning to a degree
negating the required specific mental states.
B. Failure To Move To Suppress Defendant's Non-Mirandized Statements
Defendant argues his counsel provided ineffective representation by failing to
move to suppress his postarrest statements to the jail nurse and to the police on grounds
that he had not been provided with the Miranda admonitions.
1. Statement to the Jail Nurse
In a pretrial motion, defense counsel moved to suppress defendant's postarrest
statements on Miranda grounds. At the pretrial hearing on the motion, the prosecutor
said she only intended to introduce defendant's statement to the jail nurse that he was
" 'punching a dummy doll' " when during booking the nurse asked him, apparently for
treatment purposes, what happened to his hand. Defense counsel argued the statement
should be excluded because the nurse's question invited him to make a statement relevant
20 to the case. The trial court denied the motion, ruling the evidence was admissible unless
the defense could show the nurse was acting as an agent of the police.
Defendant's contention on appeal that he was provided ineffective representation
with respect to his statement to the jail nurse is unavailing because defense counsel did
move to exclude this statement.
To the extent defendant contends the trial court erred in denying his counsel's
motion to exclude the evidence, there was no error. The prophylactic Miranda rule
generally requires exclusion of statements made by a defendant while being subjected to
custodial interrogation without provision of the Miranda warnings. (People v. Andreasen
(2013) 214 Cal.App.4th 70, 86.) However, under the booking exception to the Miranda
rule, the authorities need not provide Miranda warnings prior to asking routine questions
related to health or safety concerns that arise during the arrest or booking process. (Id. at
p. 87; People v. Williams (2013) 56 Cal.4th 165, 174, 187-189 [Miranda not triggered by
prison intake question about reason for defendant's request for protective custody];
People v. Jones (1979) 96 Cal.App.3d 820, 827-828 [Miranda not triggered by arrest
question related to defendant's medical condition]; People v. Gomez (2011) 192
Cal.App.4th 609, 634-635 [Miranda not triggered by routine booking question about
gang affiliation designed to ensure safety of jail placement].) The fact that information
gathered from these routine questions turns out to be incriminating does not alone render
the statements inadmissible. (People v. Andreasen, supra, 214 Cal.App.4th at p. 87.)
However, a Miranda interrogation may emerge during routine exchanges if the
authorities ask questions " ' "that are designed to elicit incriminatory admissions." '
21 [Citation.]" (People v. Williams, supra, 56 Cal.4th at pp. 187-188; People v. Andreasen,
supra, 214 Cal.App.4th at p. 87.)
Here, one of the arresting officers (Jarred Slocum) testified at trial that when
defendant was being booked into the county jail, the jail nurse asked him if he had any
injuries. Defendant responded that his hand "kind of hurt." The nurse then asked,
" 'What happened to your hand?' " Defendant responded, " 'I beat the shit out of a
dummy doll.' " These circumstances show defendant made the statement during routine
booking in response to a health-related question which was properly asked by the jail
nurse and which was unrelated to the police investigatory function. Under the booking
exception to Miranda, the court did not err in admitting the statement.
2. Statement to Officer Slocum
On cross-examination of Officer Slocum, defense counsel asked, "At some point
in time, did my client . . . indicate to you some . . . surprise of the fact that his mom was
still alive?" Officer Slocum answered, "Yes." Thereafter, on redirect examination, the
prosecutor asked Officer Slocum to describe the context of defendant's indication of
surprise "that his mom lived." Officer Slocum testified that when he returned from the
scene of the crime to the police station, the officer who had brought defendant in for
processing told Officer Slocum that defendant knew he was under arrest but defendant
had not yet been told what the charges were. Without providing Miranda warnings,
Officer Slocum then said to defendant, " 'Going through and talking with everyone at the
scene, it looks like you were trying to kill your mom.' " Defendant "nodded his head
'yeah' " and said " 'I can't believe she's still alive.' "
22 By asking Officer Slocum about defendant's indication that he was surprised his
mother was still alive, defense counsel opened the door to allow the prosecutor's
questioning on redirect examination about the entire conversation. (People v. Sakarias
(2000) 22 Cal.4th 596, 642-644 [defense introduction of testimony regarding non-
Mirandized interview allowed prosecution to introduce entire interview].) Because
defendant's responses were admissible on redirect examination regardless of any Miranda
violation, defense counsel did not provide ineffective representation by failing to object
to admission of this evidence. Further, defense counsel was not ineffective for
introducing the evidence about defendant's postarrest surprise that his mother was still
alive because it was consistent with the defense theory that defendant was focused on
killing his mother and he was not thinking about torturing her.7 This was a reasonable
tactical approach.
IV. Failure To Stay Sentence on Attempted Murder Count
Defendant argues the trial court was required to stay the sentence on the attempted
murder count because he engaged in a single course of conduct that solely involved his
intent to kill Melinda.
7 For example, in closing arguments defense counsel stated: "He's trying to kill his mother. He thought he had. . . . [¶] . . . [¶] . . . She pretended to be dead, and it saved her life. Why did it save her life? Because all he wanted to do was terminate her life. . . . [¶] Even the officers said, 'Gee, he was, "She's alive? I thought I killed her.". . . [¶] . . . [¶] . . . He could have tortured her for days if he wanted. [¶] Why didn't he? Well, I guess he just didn't think about it? . . . He's not torturing her. He is terminating her existence. That is his goal." 23 When a defendant is convicted of two offenses that are part of an indivisible
course of conduct, the sentence for one of the offenses must be stayed. (§ 654, subd. (a);
People v. Deloza (1998) 18 Cal.4th 585, 591-592.) This rule is designed to ensure that a
defendant's punishment is commensurate with his or her culpability. (People v. McCoy
(1992) 9 Cal.App.4th 1578, 1584.) Whether a transaction is divisible so as to allow
multiple punishment depends on whether the defendant had an independent objective for
each offense. (Id. at p. 1585.) If a defendant had multiple, independent criminal
objectives, 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. (Ibid.) Multiple distinct objectives may exist if the
defendant simultaneously entertains more than one objective during the transaction.
(People v. Latimer (1993) 5 Cal.4th 1203, 1212; People v. Ibarra (2007) 151 Cal.App.4th
1145, 1153.)
On appeal we apply the substantial evidence standard to review the court's finding
that the defendant had separate objectives. (People v. Andra (2007) 156 Cal.App.4th
638, 640.) We view the evidence in the light most favorable to the court's determination,
and presume in support of the court's conclusion the existence of every fact that could
reasonably be deduced from the evidence. (Id. at pp. 640-641.)
The trial court reasonably found that defendant had two distinct objectives, to kill
his mother and to cause her to suffer pain in addition to the pain of death. As set forth
above, defendant not only attacked his mother with a life-threatening brutal beating, but
he also focused part of the attack on her face, bit her finger, and repeatedly hit her with an
24 object that he retrieved during the course of the attack. These circumstances support the
court's finding of multiple objectives, warranting punishment for both attempted murder
and torture.
V. Cumulative Error
Defendant argues the cumulative effect of error in his case requires reversal of the
judgment. We are striking his battery with serious bodily injury conviction so there is no
error with respect to the multiple conviction bar for necessarily included offenses.
Assuming arguendo there was error arising from the court's failure to instruct the jury to
select only the lesser included offense in the event of doubt, and defense counsel's failure
to request intoxication instructions, the errors, even considered cumulatively, did not
deprive defendant of a fair trial. As set forth above, the instructions provided to the
jurors clearly apprised them that each count (including the greater offense of mayhem)
had to be proven beyond a reasonable doubt, and there was strong evidence that
defendant's alcohol consumption did not impair his formulation of the required specific
intents or mental states.
DISPOSITION
The conviction for battery with serious bodily injury (§ 243, subd. (d), count 5) is
stricken from the judgment. As so modified, the judgment is affirmed. The trial court is
directed to amend the abstract of judgment to remove the battery with serious bodily
25 injury conviction, and to forward the amended abstract to the Department of Corrections
and Rehabilitation.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
O'ROURKE, J.