The PEOPLE, Plaintiff and Respondent, v. Alfred Shepard SCOTT, Defendant and Appellant.
INTRODUCTION AND PROCEDURAL HISTORY
By an amended information filed March 15, 1988, appellant Alfred Shepard Scott was charged with one count of attempted murder (Pen.Code, §§ 664 and 187, subd. (a) 1 ; two counts of assault with a firearm (§ 245, subd. (a)(2); three counts of mayhem (§ 203); six counts of forcible rape in concert (§ 264.1); two counts of forcible oral copulation in concert (§ 288a, subd. (d)); and one count of kidnapping (§ 207).
All of the counts except count 2 included an allegation that appellant was armed with a firearm (§ 12022, subd. (a)). Allegations that appellant personally inflicted great bodily injury (§ 12022.7) upon the victim were appended to counts 1, 2 and 15. Additional allegations that appellant had personally inflicted great bodily injury (§ 12022.8) were added to counts 7 through 14.
Counts 13 and 14 carried allegations that appellant was armed with a firearm (§ 12022.3, subd. (b)). Count 15 also alleged that the kidnapping occurred for purposes of committing a sexual offense within the meaning of section 667.8, subdivision (a).
It was further alleged that appellant had served a prior prison term for robbery within the meaning of section 667.5, subdivision (b).
Appellant pleaded not guilty and denied each of the special allegations.
Appellant had previously moved to set aside the information pursuant to section 995 alleging that there was insufficient evidence to hold appellant to answer. The motion was denied.
A motion for judgment of acquittal pursuant to section 1118.1 was granted in part at the close of the prosecution's case. Specifically, counts 10, 11 and 12 were dismissed, as were the allegations pursuant to section 12022.5. An allegation according to the provisions of section 12022.3, subdivision (a) was dismissed as it related to count 13.
At the conclusion of a jury trial, appellant was convicted of each of the substantive counts which remained. Of the remaining special allegations, the following were found to be true:
Counts 1, 2, and 15—Infliction of great bodily injury, as defined in section 12022.7; counts 7, 8, 9, 13 and 14—infliction of great bodily injury as defined in section 12022.8; counts 13 and 14—arming with a firearm, as defined in section 12022.3, subdivision (b); and count 15—kidnapping for purposes of committing a sex offense, as defined in section 667.8. All remaining allegations were found untrue.
Appellant waived his constitutional right to a jury trial concerning the allegation of his prior conviction and was found to have suffered a prior serious felony conviction within the meaning of section 667, subdivision (a). His motion for a new trial was denied and he was sentenced to state prison for a total term of 97 years, computed as follows:
Timely appeal was taken from portions of judgment and sentencing.
The victim, R. B., testified that on January 9, 1986, at about 9 p.m., she was walking towards her apartment when she was accosted by two or three men. They dragged her from the sidewalk, across the front lawn of a building located at 8019 Hoover Street, Los Angeles, and down a walkway between that building and the building at 8029 Hoover Street, to a carport adjacent to the alleyway behind the buildings. One of the persons had a shotgun. The victim recognized him to be Cedric Harmon. As she was dragged, she lost her blue shoes and her white coat. She fought to get free and called out for assistance. Her abductors told her to “shut up, bitch,” and they hit and kicked her.
Six or more people were in the carport where the victim was taken. As some people pulled her dress over her head, the victim broke free and ran through the crowd back to the sidewalk adjacent to Hoover Street. She was dressed only in her underpants. The cars raced by so fast she thought she would get hit if she tried to cross the street. Before she could turn around, three or four persons again grabbed her. They picked her up “like a log,” dragged her back to the carport, hitting her with the gun and their fists, and telling her “shut up, bitch. Shut up.”
Appellant was present both times she was brought to the carport.
In addition to being kicked and beaten in the carport, the victim was hit with the gun by Cedric Harmon so many times she lost count. She was told that if she didn't shut up, “we are going to kill you right now.” The victim was held on the ground and raped. Appellant was one of the persons who held the victim down. The victim was not sure who raped her first, but testified that before she lost consciousness, she was “raped twice in the vagina and ․ twice by mouth.” Five or six men were present. As one person would assault her, the others held her arms and legs. Throughout, the victim was punched and kicked.
The victim could not recall whether appellant had raped her or put his penis in her mouth, but she saw him there while the acts were taking place and believed he could have been a perpetrator. She knew appellant as a casual acquaintance, but had no special relationship with him.
The victim recalled Cedric Harmon was the only person who threatened and hit her with a shotgun. Various persons kicked her in her head and in her sides. She kept hollering, “let me go.” She called, in particular, to “Vickie,” a person she knew lived in the complex. No one came to her aid.
Of the six or more people surrounding the victim, one was female. The victim heard her ask, “Why are you doing this to her?” There was no answer. The last thing the victim remembered was a voice saying, “We got to kill her, man. She knows me.” As this was said, she blacked out, having been hit on the side of her head with the shotgun.
Ms. Robinson, a resident of Hoover Plaza Apartments, 8029 South Hoover, testified that a person she knew as Mark Green came to her apartment and asked Michael Gleeton, a person present with her in the apartment, whether he “want[ed] to come downstairs and get some head.” Gleeton said “No, man, I don't want to go because I got my old lady.” Green left.
Sometime later, Ms. Robinson saw smoke coming up from “under way.” She had been watching television but her kids screamed at her that something was going on in back. She went to her window and saw “three guys walking with something” carried between them. One of these people was appellant and one was Mark Green. They carried the “thing” to the dumpster and threw it in. Thereafter, the third person said to Green, “Get some matches.” Green ran off and came back shortly, handing something to appellant. Appellant then lit a piece of paper he had in his hand and went “up and down the body” with it. Ms. Robinson started to scream. Everything had caught fire. She saw something green catch fire. Ms. Robinson could tell that the “thing” she had seen carried to the dumpster was a body, but, because the body was face down, she was not certain of the sex. She screamed and it “woke up both of them”—appellant and Mark, and “both of them r[a]n.” She ran outside and asked someone to call the police. Her children tried to douse the flames, but were unsuccessful.
Police officer Troy Bybee, received a radio call to 8029 South Hoover and arrived at the location at approximately 11:45 p.m. He saw a dumpster on fire in an alleyway behind a carport. Near the top of the dumpster, he saw a Christmas tree engulfed in flames. He helped remove the charred tree and observed a young, nude, Black female. She was face down and she was moaning. Officer Bybee grabbed her in the ankle area and his partner grabbed her by the arms. They picked her up and pulled her out of the four or five foot tall dumpster. Among other things, she had a bump on her head; her skin was burnt, bubbled and loose over her entire body. Her badly burned fingers were split open, as were the toes on one foot. Her hair was partially burned off.
The fire department came and put out the remaining fire. The paramedics at the scene worked on the victim. Officer Bybee rode with her to Daniel Freeman Hospital and remained with her several hours while doctors and nurses treated her. Thereafter, the victim was “medivaced” to a burn center.
The victim, as a consequence of the burns, lost her left hand, left leg, and both breasts. She suffered substantial scarring over her face and body.
On March 5, 1986, following a knowing and volitional waiver of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), appellant gave statements to Los Angeles Police Officers Flores and Winston. In his tape-recorded statement, appellant told the officers that he was one of the persons who stopped the victim as she was walking on the street. Cedric Harmon put a gun to her head and they carried her to the back. Appellant said that he and others hit her; that he grabbed and pulled her hair, got her down on the ground and told her to stay there. Cedric got his “thing” out and “she [was] getting head. He kept on doing, doing it. Then [she] bite [sic] his dick․ [He] hit her with ․ his gun․” Appellant hit her with his fist in her back. After that she lay still and “Baby Sim had sex with her․ He stayed a couple of minutes.”
Asked by Officer Flores whether he got “any of that,” appellant responded, “yes, I know it. I just played with wiggling my butt around. I had my zipper down. Just playing ․ around ․ with her․ I ain't really fuck her though.” [Sic] Asked how he was playing with her, appellant responded that “like ․ having my dick ․ do pump like that․ I had my know what in the hole though.” [Sic] Thereafter, disclaiming touching the victim with his penis, appellant said, “I wasn't have my dick in her pussy though․ I just, um, wiggle around on her․ Thereafter that ․ I got up, and zip um my zipper up. Then ․ homeboy, Ced got his dick sucked again․ She bite his dick, and Ced hit her with the wood part [of the shotgun] in the head, and the back.” Afterwards, “we carry her [to] the trash can. Then, Ced, hit [her] with the [shotgun] pump again, her head bust up. I felt some blood on ․ her head.” [Sic] Appellant acknowledged the victim was breathing heavily and stated: “I put the match to the fire․ I say ․ ‘kill her. [Y]ou know she's gonna snitch.’ ․ Then after that, the fire ․ was high in the sky.” Later, a woman dressed in sleepwear “told us ‘what you guys doing around here. Why you ․ putting fire in the trash can.’ [But] it was too late.” [Sic.]
Appellant contends that his three mayhem convictions must be reversed because the injuries sustained by the victim sprang from a single act and, therefore, were improperly divided into multiple crimes. We disagree.
Neither side has provided authority directly on point, and we have found none; however, the language of section 203 makes it clear that the deprivation of a single body member constitutes the crime of mayhem. That section, which has remained unchanged since 1874, provides that: “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.” (Emphasis added.)
This section is a codification of the common law, which early in its development required that an accused, upon conviction of mayhem, be punished by the loss of the same body member his victim sustained.2 Thus, from the earliest roots of our law, a distinct wrong was recognized for each loss the victim sustained, and a separate punishment was provided therefor.
Given the statute's plain language, the history behind it, and the directive of section 4, that a criminal statute's provisions be construed “according to the fair import of [its] terms, in order to effect the statute's objects and promote justice,” we affirm the convictions as to counts 4, 5 and 6.
We do acknowledge that the victim's injuries were the result of a single course of conduct, the stated intention of which was to cause the victim's death by fire. The means chosen, i.e., incineration, carries within it the intent to cause the injuries necessary to kill the victim. Appellant can be presumed to have intended the natural and probable consequences of his voluntary act, which consequences would necessarily include the loss of body parts if harm less than death resulted. (Evid.Code, § 665.)
It is true that, when a number of crimes occur incidental to one objective and arising out of an indivisible course of conduct, only one punishment may be imposed. (§ 654; People v. Beamon (1973) 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905.) Here, the judge below properly imposed punishment on the greater offense, attempted murder, and stayed punishment on the three mayhem convictions.
As above stated, we affirm the judgment of conviction on the three counts of mayhem.
Appellant contends that the last of the three convictions he sustained for rape in concert, section 264.1, count 9, must be reversed because the evidence received was insufficient to support the conviction. He asserts that the only evidence underlying this conviction was his statements to the police, and that these statements do not establish a third act of rape and, in particular, his commission of a rape. We disagree with appellant's assessment of the evidence and affirm the judgment of conviction on this count.
It is true that the victim testified she could only be certain as to two acts of forced intercourse and two acts of oral copulation with persons other than appellant, before she lost consciousness. Nevertheless, she recalled that appellant may have been among those who raped her and other evidence supports the jury's determination that he was. This evidence includes the following.
The victim saw appellant in the carport both times she was forcibly taken there. She testified that six persons were present in the carport during the assault, and appellant was one of the persons she observed before losing consciousness. The beatings and sexual assaults occurred over a period of several hours. The victim's testimony establishes that appellant was present at the beginning of these acts and that a voice, which appellant identified as his own, spoke words which were apparently stated at the conclusion of the acts, i.e., “We got to kill her, man. She knows me.” Ms. Robinson's testimony established that appellant attempted to dispose of the evidence through the incineration of the victim.
While the corpus delicti of a crime must be proved independent of an accused's extrajudicial admission, the independent proof may be by circumstantial evidence. (People v. Manson (1977) 71 Cal.App.3d 1, 25, 139 Cal.Rptr. 275.) A slight or prima facie showing, permitting a reasonable inference that a crime was committed suffices. (People v. Towler (1982) 31 Cal.3d 105, 115, 181 Cal.Rptr. 391, 641 P.2d 1253.) Circumstantial evidence of rape of an unconscious victim has been held by our Supreme Court to be sufficient to support a conviction for rape. (See People v. O'Brien (1900) 130 Cal. 1, 4–5, 62 P. 297.) Here the direct and circumstantial evidence, independent of appellant's admissions, supported the jury's reasonable conclusion that more than two acts of rape in concert occurred and that appellant was a perpetrator of one such act. This being so, appellant's statements are admissible to strengthen the case on all issues. (People v. Alcala (1984) 36 Cal.3d 604, 624–625, 205 Cal.Rptr. 775, 685 P.2d 1126.) Identity, not being an element of an offense, can be established by an extrajudicial admission or confession. (People v. Garcia (1929) 101 Cal.App. 213, 215–217, 281 P. 508.)
Appellant's statements to the police confirm his personal participation in raping the victim. Although his statements to the police were contradictory in that appellant first claimed only to have “wiggled [his] dick on top of her pussy” and then later said he “play[ed] around ․ with my dick do pump like that; I had my know what in the hole though,” his latter statement supported the jury's determination that a third act of rape in concert occurred—this rape by appellant.
We affirm judgment of conviction as to count 9.
We disagree with appellant's contention that evidence of asportation was insufficient to support his conviction of simple kidnapping or the special allegation found true that the appellant kidnapped the victim for the purpose of committing the sexual offenses of which he was convicted. We find that substantial evidence supports the jury's determinations and we, accordingly, affirm them.
Our Supreme Court has rejected as arbitrary the imposition of a principle based upon any specific number of inches, feet, or yards a victim is moved. (People v. Stanworth (1974) 11 Cal.3d 588, 596–604, 114 Cal.Rptr. 250, 522 P.2d 1058.) The distance involved, however, must be more than that which would be regarded as trivial, slight or insignificant. (People v. Caudillo (1978) 21 Cal.3d 562, 572–575, 146 Cal.Rptr. 859, 580 P.2d 274.) The simple fact that asportation is accomplished in two stages, where both asportations are “trivial,” does not permit the total distance covered to be deemed “substantial.” (People v. Caudillo, supra, at p. 574, 146 Cal.Rptr. 859, 580 P.2d 274.)
In People v. Brown (1974) 11 Cal.3d 784, 114 Cal.Rptr. 426, 523 P.2d 226, the Supreme Court held that moving the victim through rooms of her residence and thereafter alongside her house for 75 feet to be insubstantial. In People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267, the Supreme Court found movement of a victim from one portion of a laundromat to another insufficient to support a conviction of kidnapping. In People v. Caudillo, cited supra, the Supreme Court found movement of the victim to various places in an apartment complex where she resided to be insubstantial. In People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, the Supreme Court found movement of the victim from the secluded area where a car had been parked to a place 90 feet away where she was killed insubstantial. The most recent Supreme Court case on this subject, People v. Sheldon (1989) 48 Cal.3d 935, 258 Cal.Rptr. 242, 771 P.2d 1330, is similar to the Brown case in that movement of the victim between an adjoining garage and various rooms in her residence was held to be too minor to constitute kidnapping. We find each of these cases distinguishable on their facts from the case before us.
In the Brown, Thornton, Caudillo and Sheldon cases, movement of the victim occurred within or adjacent to the residence of the victim or within the commercial establishment in which the victim was encountered. In the Green case, the car was stopped in a secluded area when the movement of the victim commenced and she remained in this same secluded area, within sight of the vehicle, at the time of her death.
In the case before us the record is silent as to the exact distance the victim was moved. It is clear, however, that she was twice forcibly taken from an area of relative safety, i.e., the walkway next to a heavily traveled public street, to a place under the dominion and control of those who attacked her in order that they might attack her. She was pulled from the walkway, along the full-length of the apartment complex, to the carport adjacent to the alleyway, a distance which, generally, is one-half a city block. We find, under the circumstances of this case, that the distance traveled was not trivial, slight or insignificant, but was substantial.
We find support for our determination in the cases of People v. Stender (1975) 47 Cal.App.3d 413, 121 Cal.Rptr. 334, and People v. Blackburn (1976) 56 Cal.App.3d 685, 128 Cal.Rptr. 864, cases which we believe comport more closely with the facts before us than the cases earlier cited. In Stender, the victim was taken about 200 feet from the residence where her mother was sleeping to a spot beneath a pier on the beach where a sexual assault occurred. In Blackburn, the victim was taken from a walkway where she had been walking with her brother, through an alleyway, and into an abandoned apartment building where she was raped, a distance of about 500 feet. In each of these cases the victim was moved from places of relative safety to places under the dominion of her captor to facilitate a sexual assault. In each case the distance traveled was less than one-tenth of a mile.
We affirm judgment of conviction for kidnap and the allegation under section 667.8, subdivision (a).
Appellant contends it was error for the trial court to impose a three-year enhancement under section 667.8, subdivision (a) because the underlying offense, kidnapping in violation of section 207, was stayed. We disagree.
Section 667.8, subdivision (a) provides that “any person convicted of a felony violation of Section 264.1 who, for the purpose of committing that sexual offense, kidnapped the victim in violation of Section 207, shall be punished by an additional term of three years.” As was stated in In re Samuel B. (1986) 184 Cal.App.3d 1100, 229 Cal.Rptr. 378, disapproved on other grounds by People v. Hernandez (1988) 46 Cal.3d 194, 206, 249 Cal.Rptr. 850, 757 P.2d 1013, this “statute can apply only in a situation in which a defendant was convicted of a rape and kidnapping which comprise an indivisible transaction arising out of a single course of conduct and the kidnapping was perpetrated for the purpose of committing the rape. Under such circumstances defendant cannot be punished separately for the kidnapping (§ 654). To remedy the situation, existing prior to 1983, the Legislature added section 667.8 to provide that one convicted of one of the sexual offenses listed, be additionally punished therefor when, for the purpose of committing such sexual offense, he kidnapped the victim in violation of section 207.” (Id. 184 Cal.App.3d at p. 1108, 229 Cal.Rptr. 378.) Where a jury convicts a defendant of rape and kidnapping in violation of section 207 and the jury finds true that the kidnapping was for the purpose of committing the rape, the defendant cannot be punished for both offenses because of the proscription of section 654, but section 667.8 mandates the imposition of an additional three-year term. The statutory directive is clear in this regard. (See People v. Flores (1987) 193 Cal.App.3d 915, 922, 238 Cal.Rptr. 656 and In re Samuel B., supra.)
In this case, the kidnapping was incidental to and for the purpose of committing another criminal act, rape in concert, section 264.1, which is one of the enumerated offenses set forth in section 667.8. The trial court correctly stayed imposition of sentence for the conviction of kidnap pursuant to section 654, and imposed three years for the enhancement as set forth in section 667.8.
No error is found. We affirm.
Appellant contends the trial court erred in enhancing his sentence as to counts 2, 7 through 9, and 13 through 15, because there was insufficient evidence that the victim sustained great bodily injury and because no evidence was presented that appellant imposed any specific injuries on the victim. We disagree and affirm the sentencing as to these counts.
Appellant does not dispute the fact that the victim suffered severe injury and disfigurement as a result of the acts of attempted murder and mayhem, but insists that the only evidence of any injuries earlier sustained was the bump observed on the victim's head after she was rescued from the dumpster.
The evidence before the jury through the victim's testimony was that she was punched numerous times, hit in the head repeatedly with a gun and, kicked while she was on the ground. She identified appellant as having been present while this occurred. Appellant's statements confirm his active participation. He told the investigating police officers that he hit the victim, knocked her down, pulled her hair, punched her in the back with his fist, and held her down on the ground. This evidence was sufficient to support a finding that appellant took part in the beating of the victim with the specific intent to inflict the injuries occasioned thereby and was personally responsible for their infliction. (People v. Dominick (1986) 182 Cal.App.3d 1174, 227 Cal.Rptr. 849.)
As to appellant's contention that no specific evidence of injuries received in the beating was presented to the jury, the evidence is contrary. Even though the victim was burned beyond recognition, and much of her hair was gone, the bump on her head was visible to the officer who removed her from the dumpster. Her own testimony and that of appellant established that she lost consciousness as a result of the beating. Further, appellant's statement indicated that, when she was placed in the dumpster, the victim was bleeding from her head and that her head was “bust up.” Whether the harm resulting to a victim constitutes great bodily injury is a question of fact for the jury. Where there is sufficient evidence to sustain the jury's finding of great bodily injury, a reviewing court is bound to accept it. (People v. Wolcott (1983) 34 Cal.3d 92, 107, 192 Cal.Rptr. 748, 665 P.2d 520.) Such is the case here.
Standing alone, the evidence set forth above might, arguably, make this a close case on the presence of great bodily injury. Here, however, the nature of the beating and the time over which it took place are such as would indicate, even to the most skeptical, that far greater injuries were actually sustained by the victim and that such abrasions, lacerations and bruises were covered over by the burning and charring of her flesh. We believe this underscores the appropriateness of the jury's finding as to these allegations.
Appellant's last contention is that the trial court erred in enhancing his sentence, as to counts 13 and 14, under section 12022.3, subdivision (b), since no evidence was presented that appellant was personally armed with a firearm during the commission of the oral copulation offenses of which he was convicted. In so contending, appellant urges us to follow the case of People v. Reed (1982) 135 Cal.App.3d 149, 185 Cal.Rptr. 169. The Reed court (3d Dist.) held that the proper construction of section 12022.3, subdivision (b) 3 is that it permits additional punishment only when the defendant is “personally armed with a firearm.” (Emphasis original, at p. 151, 185 Cal.Rptr. 169.)
We decline to follow Reed, believing that the ruling of People v. Le (1984) 154 Cal.App.3d 1, 200 Cal.Rptr. 839 is a better, more logical, interpretation of the law. In so doing, we acknowledge footnote 5 in People v. Piper (1986) 42 Cal.3d 471, 477, 229 Cal.Rptr. 125, 722 P.2d 899, appears to favor Reed. Our Supreme Court has, however, not yet directly resolved the difference which exists among our Courts of Appeal.
The Le court (4th Dist.) disagreed with Reed's holding because “[e]xtending the Reed analysis to its logical conclusion produces an absurd result: If two perpetrators commit a rape—one holding a gun to the victim's head while the other rapes her—only the one holding the gun receives an enhancement.” (Id., 154 Cal.App.3d at p. 11, 200 Cal.Rptr. 839.) We agree. We believe, with the Le court, that “[i]f the Legislature had intended to restrict imposition of this enhancement to persons who are personally armed, it would have inserted the word ‘personally’ as it did in other enhancement provisions.” (Citing §§ 12022, subd. (b), 12022.5 and 12022.7.) With Le, we hold that section 12022.3, subdivision (b) applies to all accomplices, those acting in concert, and does not require each person to be personally armed.
Judgment and sentencing are affirmed.
1. All further statutory references are to the Penal Code, unless otherwise indicated.
2. See 57 Corpus Juris Secundum, Mayhem, section 12, page 474.
3. At the time appellant was charged, section 12022.3, subdivision (b) provided in pertinent part: “For each violation of [Penal Code] Section ․ 288a, ․ and in addition to the sentence provided, any person shall receive an enhancement ․ of two years if such person is armed with a firearm or any other deadly weapon.”
TAYLOR, Associate Justice * FN* Assigned by the Chairperson of the Judicial Council.
DEVICH, Acting P.J., and ORTEGA, J., concur.