Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA053341. Harvey Giss, Judge.
Lori E. Kantor, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Jose Meza (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of mayhem. (Pen. Code, § 203.) The trial court sentenced him to an upper term of eight years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
He contends that (1) the modified pattern jury instruction that the trial court used to define mayhem was fatally incomplete; and (2) there was Blakely error (Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and (3) the decision in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres) has lost its vitality, and consequently, a defendant’s criminal history cannot be used in aggravation to impose an upper term without the findings required by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
On January 22, 2007, the United States Supreme Court decided Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). Thereafter, the parties filed further briefing on the Blakely-Cunningham and Almendarez-Torres issues. On March 5, 2007, submission was vacated until the filing of the decisions by the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), which were filed in July 2007. On August 1, 2007, we requested further briefing in light of the decisions in Black II and Sandoval. The parties filed their briefing respectively on August 22, 2007, and August 27, 2007. The matter was resubmitted on October 24, 2007.
We conclude that the contentions lack merit, and affirm the judgment.
FACTS
I. The Trial Evidence
The information charged defendant with mayhem and assault by means of force likely to produce great bodily injury and with a deadly weapon. The information contained no allegations of enhancements.
In 2005, Daniel Hernandez (Hernandez) hired Hipolito Meza (Hipolito) as a subcontractor to perform some wiring and stucco work at a residence. At 4:30 to 5:00 p.m. on November 1, 2005, Hernandez stopped at the residence to drive his other workers home. Hipolito was waiting for Hernandez. Defendant, Hipolito’s brother, was seated in the driver’s seat of Hipolito’s truck, which was parked in the residence’s driveway. Hipolito insisted on being paid immediately, even though he and Hernandez previously had agreed that Hipolito would not be paid until his work passed inspection. The inspection was scheduled to occur the following day.
When Hernandez refused to pay Hipolito until the work was inspected, Hipolito threatened to take Hernandez’s tile-cutting machinery, which was onsite. Then Hipolito commented to his brother: “Well, okay. We’re going to have to follow him to his home.” Hernandez turned to walk to his truck, which was parked on the street. Hipolito broke a tile, followed Hernandez, and attempted to cut Hernandez on the face with the tile. Hernandez blocked the assault, and Hipolito dropped the tile. Hipolito started punching Hernandez. Hernandez defended himself.
Defendant got out of the truck. While Hernandez was fighting with Hipolito, defendant kicked Hernandez from behind. Hernandez believed that defendant was stronger than he was. He turned to face defendant, who attacked Hernandez with his hands. Hernandez grabbed defendant in a bear hug to keep defendant’s hands away from his face, pushed defendant against his truck, and used his knees to inflict blows. David Lara (Lara), one of Hernandez’s workers, kept Hipolito from interfering in the struggle. During the struggle, defendant could not use his hands. However, he bit Hernandez on the face three times. During the last bite, defendant bit Hernandez between the eyes on the nose, severing a piece of flesh from Hernandez’s nose.
Lara testified that defendant bit Hernandez later after Hernandez pulled defendant to the ground.
Hernandez thought that he was merely scratched. He let go of defendant, and defendant ran. However, Hernandez soon realized that his face was “bathed in blood.” He grabbed defendant’s legs to prevent defendant’s departure, pulled defendant to the ground, and lay atop him. Defendant grabbed Hernandez in the groin and at the same time put his hand on Hernandez’s face. To make defendant let go of his groin, Hernandez bit defendant’s hand. Defendant hit Hernandez in the testicles. Thirty seconds later, the residence’s owner and two of Hernandez’s workmen separated the men.
Defendant and Hipolito got into Hipolito’s truck and started to drive off. Hernandez instructed Lara to write down Hipolito’s license number. As defendant backed out of the driveway, defendant swerved in the truck toward Hernandez, Lara, and another worker. Defendant would have hit the men had they not jumped aside.
The police were telephoned, and Hernandez went to the hospital. The flesh missing from his nose was not found.
At trial, the emergency room physician testified that Hernandez had suffered an “avulsion injury” inflicted by a human bite. The doctor explained that “avulsion” describes a wound in which a significant amount of soft tissue is missing. The doctor was unable to sew the edges of Hernandez’s wound together because so much tissue was missing. The doctor referred Hernandez to a plastic surgeon as he believed a skin graft would be needed. Also, if Hernandez’s bone and cartilage were to become infected, it would cause Hernandez serious problems. During cross-examination, defense counsel asked whether it was likely that the missing tissue would fill in on its own during healing. The doctor said there is not much tissue on top of a person’s nose, and he expressed doubt that such healing would occur. However, he acknowledged that it was possible that the tissue would fill in on its own.
During his final argument, the prosecutor observed the following: “[Y]ou actually saw the victim. You had a chance to actually see the disfigurement that still is there today as a result of this incident. So that element [the victim suffered a disfiguring injury] I believe is clearly met.”
Hernandez testified that the plastic surgeon told him that nothing could be done immediately about repairing his nose. Hernandez would have to wait for the nose to heal. In about six months, the plastic surgeon would be able to perform plastic surgery to attempt to fill in the gap in the tissue on his nose.
At 9:00 p.m. following the fight, Los Angeles Police Officer Keith McElwee and three other officers went to Hipolito’s residence. Defendant was inside a trailer in the backyard when the officers arrived. Defendant attempted to escape by running away.
Defendant did not testify or present evidence in defense.
The jury acquitted defendant of the assault charge and found him guilty of mayhem.
II. The Sentencing Proceedings
At sentencing, the trial court read and considered a probation report disclosing that defendant was 35 years old. He had the following prior convictions: a 1987 and a 1988 conviction for possessing marijuana for sale, the latter of which resulted in a 16-month commitment to state prison; a 1989 conviction for possessing cocaine base for sale, for which he was committed to state prison for a three-year term; a 1992 conviction for possessing a controlled substance, for which he was committed to state prison for a two-year term; and a 1993 conviction for transporting or selling a controlled substance, for which he was sentenced to a six-year prison term. Defendant’s probation records showed that he had a history of cocaine and heroin use by injection and that he had been deported several times and that he had repeatedly returned to the United States. The probation officer said that it was doubtful he was a United States citizen. The probation officer recommended an upper term sentence as the offense was “heinous” and defendant’s extensive criminal history made him unsuitable for a formal grant of probation.
The trial court told the parties that it tentatively was considering imposing the upper term of eight years. It said that it would be relying upon the aggravating factors (1) that defendant had prior convictions as an adult that were numerous or of increasing seriousness and (2) that he had served separate prison terms that were not alleged in the information as section 667.5, subdivision (b) one-year enhancements. The trial court mentioned that defendant apparently was an illegal alien who had repeatedly and illegally reentered the United States.
Defense counsel argued for a middle term sentence of four years. In mitigation, defense counsel asserted that the prior convictions were related to drug addiction. He made a Blakely objection, complaining that the aggravating factors underlying the imposition of an upper term had not been presented to a jury and found true beyond a reasonable doubt. Nor had they been admitted by defendant.
The trial court observed that it was possible the decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) might be overruled by the United States Supreme Court. Consequently, it wanted the record to show that it would have imposed a middle term sentence, except that defendant had suffered the four prior convictions for which he had served separate prison terms.
After giving defense counsel an opportunity to argue aggravation and mitigation, the trial court imposed the upper term of eight years in state prison.
DISCUSSION
I. The Jury Instruction on Mayhem
Defendant contends that the trial court’s instruction on mayhem was incomplete as it omitted a critical element of the offense, i.e., that defendant had inflicted great bodily injury on the victim. He argues that because the jury instruction omitted one critical element of mayhem, charging the jury with that instruction denied him due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. Also, under either the Chapman or the Watson standard, he was prejudiced, and he is entitled to a reversal of the judgment and a new trial. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
We disagree.
A. The Pertinent Facts
The trial court gave the jury a modified version of Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 801 describing the elements of mayhem, as follows. “The defendant is charged in count 2 with mayhem. To prove that the defendant is guilty of mayhem, the People must prove that the defendant unlawfully and maliciously: 1. Permanently disfigured someone; Or, 2. Slit someone’s nose. Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with unlawful intent to annoy or injure someone else. A disfiguring injury may be permanent even if it can be repaired by medical procedures.”
The trial court appears to have used an earlier version of CALCRIM No. 801 as a basis for its modified jury instruction. (CALCRIM No. 801.)
The trial court further charged the jury with respect to reasonable doubt in conformity with section 1096. (See People v. Mayo (2006) 140 Cal.App.4th 535, 541–552 (review den.).) It also charged that if defendant inflicted the injury when he was acting in self-defense or in the defense of others, such conduct constituted a defense to the crime of mayhem, and defendant should be acquitted of that offense.
During his final argument to the jury, defense counsel conceded that the injury was properly characterized as mayhem and argued that the injury was not unlawful as it was inflicted when defendant was acting in self-defense or in the defense of others. Defense counsel said the following: “I’m not going to try to minimize what happened to Mr. Hernandez. It doesn’t look good—that spot between his eyes does not look good. I’m sure it hurt very much, and I’m not going to minimize it. However, at the same time I’m not going to think that my client, although he may have done it, doesn’t have a lawful defense, because he does. He does have a lawful defense. His defense is defense of his brother, which led to self-defense. That’s an absolute defense as to count 2 [mayhem].” Defense counsel asserted that once defendant was in the bear hug, and Hernandez was using his knees to hit defendant in the legs and groin, all defendant had to fight with was his head and mouth. Defense counsel also argued the discrepancies in Hernandez’s and Lara’s testimony about when the biting injury occurred.
In rebuttal, the prosecutor argued the claims of self-defense and of the defense of others were contrived and unreasonable.
B. The Relevant Legal Principles
“It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. [Citations.] The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case. [Citation.]” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
“‘“The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification.”’ (People v. Estrada (1995) 11 Cal.4th 568, 574.) ‘[I]f the instruction as given is adequate, the trial court is under no obligation to amplify or explain in the absence of a request that it do so.’ (People v. Mayfield [(1997)] 14 Cal.4th [668,] 778.)” (People v. Roldan (2005) 35 Cal.4th 646, 740.)
C. The Analysis
Defendant argues that the jury instruction is fatally flawed because it fails to include an element that the injury inflicted constitutes great bodily injury. We find no merit in the contention. The jury instruction was stated in statutory language, and no further explanation of the elements of mayhem was necessary to illuminate the issues openly and closely involved in the instant charge of mayhem.
Section 203, defining mayhem, provides as follows: “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.” The term “maliciously” as it is applicable to mayhem, is defined as an intent to vex, annoy, or injure another person. (See § 7, subd. 4; People v. Ausbie (2004) 123 Cal.App.4th 855, 862.)
The court in Goodman v. Superior Court (1978) 84 Cal.App.3d 621 (Goodman) explained the elements of mayhem in the context of the offense’s history. The court said that mayhem in the early common law punished the infliction of an injury substantially reducing a victim’s formidability in combat. Thus, an injury that was only disfiguring, without diminishing corporeal abilities was not mayhem. (Id. at pp. 623–624.) However, the common law definition of mayhem was gradually extended from malicious maiming to include intentional maiming and to require only mere disfigurement in order to violate the statute. (Id. at p. 624.) The Goodman court explained that our state statutes are modeled on the later common law definitions of mayhem and punish as mayhem disfigurement alone when the injury is permanent. (Ibid.)
In Goodman, the defendant had an argument with his live-in girlfriend. During the fight, inter alia, he deliberately cut her on the face with his knife, which resulted in a four-to-five-inch disfiguring scar. The question presented there was whether the intentional disfigurement of a person’s face fell within California’s mayhem statute. (Goodman, supra, 84 Cal.App.3d at p. 622.) Referring to a New Mexico decision, the court explained that mayhem would not include a cutting of a lip requiring stitches where the cut would heal without serious scarring. It also explained that a Texas court previously had held that an injury was considered permanent where a portion of a person’s lip was bitten off, but sewed back in by a surgeon, suggesting that the availability of plastic surgery would not make the injury impermanent so as to avoid a conclusion of maiming. (Id. at pp. 624–625.) After considering several other factual scenarios, the Goodman court concluded that “[this] victim[’s] face [was] terribly marred, probably for life, with all attendant emotional and even economic disabilities.” (Id. at p. 625.) While the court observed that “not every visible scarring wound can be said to constitute the felony crime of mayhem,” it held that the jury in that case certainly could have reasonably concluded that the defendant committed mayhem. (Id. at p. 625.)
Other courts have concluded that disfigurement that is permanent is sufficient to violate the mayhem statute and that evidence the victim’s injuries may be alleviated by the modern miracles of medicine, i.e., plastic surgery, does not remove a permanent disfigurement from the operation of the statute. (E.g., People v. Hill (1994) 23 Cal.App.4th 1566, 1571–1575; see also People v. Ausbie, supra, 123 Cal.App.4th at p. 861.)
We conclude that charging mayhem may consist of a slit to the nose or of “permanent disfigurement” is sufficient to convey to the jury the essential elements of mayhem. In another context, a trial court might be required to elaborate on the statutory language where the evidence or the defense raised an issue as to whether the injury was “‘significant or substantial’” enough to constitute mayhem. (People v. Pitts (1990) 223 Cal.App.3d 1547, 1559.) However, during this trial, whether the victim’s injury was a significant or substantial physical injury, i.e., whether it constituted “great bodily injury” or “serious injury,” was not at issue. (See People v. Pitts, supra, 223 Cal.App.3d at pp. 1558–1559; see also People v. Brown (2001) 91 Cal.App.4th 256, 272 [mayhem cannot be committed without the infliction of great bodily injury].) Defense counsel conceded during his final remarks to the jury that the injury had occurred and that it was substantial. Accordingly, the jury instruction in the terms of the statute and reciting the requisite malicious intent was adequate to apprise the jury of the elements of the offense.
Furthermore, even if we found that the jury instruction was incomplete, we would not reverse the judgment and remand the cause for new trial. At best, only one element of the offense was missing from the mayhem instruction, and the missing element did not involve a material trial issue. It is not reasonably likely that the jury found defendant guilty on a theory that defendant “slit” the victim’s nose, as that is not what happened; the bite between the eyes on the nose is most accurately described as a “permanent disfigurement.” As we previously observed, defense counsel conceded the injury was substantial and serious. Further, it is apparent from the evidence that the large, permanent, and disfiguring bite defendant took from the victim’s nose constituted such a severe and unattractive injury that it is not reasonably probable that the jury would have engaged in any debate during deliberations as to whether the wound constituted the great bodily injury or the serious injury required for mayhem. (Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836 .)
The decisions in People v. Pitts, supra, 223 Cal.App.3d 1547 and People v. Ausbie, supra, 123 Cal.App.4th 855 are distinguishable. Those decisions do not address the issue of the adequacy of jury instructions for the offense of mayhem and whether great bodily injury is a necessary element of the offense in this context. The court in People v. Pitts held that a mayhem offense cannot be enhanced by a finding of the infliction of great bodily injury pursuant to section 12022.7, subdivision (a), as great bodily injury is an element of the offense. (People v. Pitts, supra, 223 Cal.App.3d at pp. 1559–1560.) In People v. Ausbie, the court addressed whether there were improper multiple convictions based upon the same act where the jury convicted defendant of mayhem, battery with serious bodily injury, and assault by means of force likely to produce great bodily injury and with a deadly weapon. The court in People v. Ausbie held that a conviction of battery with serious bodily injury was a necessarily included offense to mayhem, and the conviction should be stricken, whereas the offense of felonious assault was not a necessarily included offense, and that conviction could stand. The court pointed out that mayhem and felonious assault are different sorts of offenses. Mayhem focuses on the nature of the injury sustained by the victim while felonious assault focuses on the degree of force applied against the victim. (People v. Ausbie, supra, 123 Cal.App.4th at pp. 859–861.)
II. The Blakely Claim
Defendant’s contention that Blakely, supra, 542 U.S. 296 renders the imposition of the upper term in this case unconstitutional. In supplemental briefing, defendant acknowledges that the trial court relied on factors of numerous and increasingly serious convictions and the service of a separate prison term in aggravation of the term. He nevertheless urges that these aggravating factors are “outside the exception of ‘the fact of a prior conviction’ carved [out] in Apprendi[, supra,]530 U.S. [at p.] 490 . . . and retained by [the court in] Blakely . . . and Cunningham.”
We conclude that his contention lacks merit.
We are bound by the decision in Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
“[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and [must be] established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 549 U.S. at pp. ___–___ [127 S.Ct. at pp. 863–864].) For this reason, in Cunningham, that court held that California’s Determinate Sentencing Law (DSL) failed to comply with a defendant’s right to a jury trial. The court concluded that for Sixth Amendment purposes, the middle term under California’s DSL is the maximum term that may be imposed on the basis of the jury’s verdict alone. (Cunningham, supra, at p. ___ [127 S.Ct. at p. 868].) Thus, a jury trial is required before a trial court can rely on aggravating factors to impose upper term punishment.
However, the United States Supreme Court recognizes “two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States[, supra,] 523 U.S. [at pp.] 239–244.)” (Sandoval, supra, 41 Cal.4th at pp. 836–837.)
In the decision in Black II, which implements Cunningham in California, the Supreme Court held that as long as there is one valid aggravating factor found true by the jury or admitted by the defendant, or there exists in the record a single aggravating circumstance that is legally sufficient to make the defendant eligible for upper term sentencing—i.e., a prior conviction—the upper term is the statutory maximum the trial court is authorized to impose. (Black II, supra, 41 Cal.4th at pp. 813–814.)
In the instant case, the trial court explicitly relied upon defendant’s numerous and increasingly serious prior convictions and the service of a separate prison term in aggravation of the term. The court in Black II held that such aggravating factors constituted proper recidivist factors that render the statutory maximum the upper term and permit judicial factfinding. (Black II, supra, 41 Cal.4th at pp. 818-819; citing People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous], People v. Ramos (1980) 106 Cal.App.3d 591, 609–610 [where a defendant convicted of robbery had two minor juvenile offenses and prior adult convictions for petty theft and driving without a license, the prior convictions were of increasing seriousness], and People v. Thomas (2001) 91 Cal.App.4th 212, 220–223 [the exception recognized in Apprendi for “‘the fact of a prior conviction’” permits a trial court to decide whether a defendant has served a prior prison term].) “‘[R]ecidivism. . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’” (Black II, supra, 41 Cal.4th at p. 818, quoting from Almendarez-Torres, supra, 523 U.S. at p. 243.)
As the record supports the existence of these two recidivist factors, defendant was not entitled to a jury trial with a standard of proof of beyond a reasonable doubt. The trial court’s factfinding alone meets constitutional requirements.
On July 14, 2004, a petition for review was granted in People v. Towne, S125677. Apart from the issue stated in the petition for review, the court asked the parties to address the issue of whether Blakely precluded a trial court from making the required findings on aggravating factors for an upper term sentence, and the standard for a reversal if there was error. Also, later, the court asked for supplemental briefing on the following issues: “(1) Do Cunningham . . . and Almendarez-Torres[, supra, ] 523 U.S. [at pp. 239–247 . . ., permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant’s prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory (Cal. Rules of Court, rule 4.421, subds. (b)(2)–(b)(5))? [¶] (2) Is there any violation of the defendant’s Sixth Amendment rights under Cunningham . . . , (2) if the defendant is eligible for the upper term based upon a single aggravating factor that has been established by means that satisfy the governing Sixth Amendment authorities—by, for example, a jury finding, the defendant’s criminal history, or the defendant’s admission—even if the trial judge relies on other aggravating factors (not established by such means) in exercising his or her discretion to select among the three sentences for which the defendant is eligible?” (People v. Towne, S125677, order of Feb. 7, 2007.) Also on February 7, 2007, the Supreme Court granted review in five cases for the purpose of addressing the impact of Cunningham: People v. Sandoval, S148917; People v. Mvuemba, S149247; People v. French, S148845; People v. Hernandez, S148974; and People v. Pardo, S148914. The Court of Appeal opinion in People v. French addresses the Blakely-Cunningham issues raised by a defendant’s guilty plea.
III. The Almendarez-Torres Contention
In this last contention, defendant raises a variation on the usual Blakely-Cunningham claim. He urges that there is no longer any exception to the rule in Apprendi, supra, 530 U.S. 466, for the use of prior convictions as stated in Almendarez-Torres, supra, 523 U.S. 224. Consequently, the trial court erred by using his criminal history to enhance his term without affording him a jury trial. In his supplemental briefing, he also argues that the court in Black II, supra, 41 Cal.4th 799 interpreted Almendarez-Torres too broadly.
In Almendarez-Torres, the United States Supreme Court concluded that a trial court’s reliance on a prior conviction as a sentencing factor does not implicate the Sixth Amendment, i.e., the defendant’s right to a jury trial and to have sentencing factors proved beyond a reasonable doubt. (Almendarez-Torres, supra, 523 U.S. at pp. 239, 246.) Further, the court said that recidivism, which “‘does not relate to the commission of the offense, but goes to the punishment only’” “is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” (Id. at pp. 243–244, original italics.)
Defendant acknowledges the decision in Almendarez-Torres. Nevertheless, he asserts that its continued validity is in doubt because the decisions in Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and Ring v. Arizona (2002) 536 U.S. 584 undermine the rationale for the exception for recidivism. Further, Justice Thomas’s concurring opinion in the recently-decided Shepard v. United States (2005) 544 U.S. 13 indicates that a majority of the members of the Supreme Court now recognize that Almendarez-Torres was wrongly decided. (Shepard v. United States, supra, at p. 27.) Based on Justice Thomas’s evaluation of the vitality of the rationale in Almendarez-Torres, defendant asserts that Apprendi and Almendarez-Torres cannot be reconciled and that Almendarez-Torres in all probability will soon be overruled.
Our view of the issue defendant raises makes no difference to our decision. The exception in Almendarez-Torres was recognized in the court’s decision in Apprendi, supra, 530 U.S. at pages 487–488, and retained by the court in Blakely, supra, 542 U.S. 296. Similarly, in People v. Kelii (1999) 21 Cal.4th 452, the California Supreme Court held that even though “factual content” may be involved, the issue of whether a prior conviction is a serious or violent felony for purposes of the Three Strikes law is “‘the type of inquiry traditionally performed by judges as part of the sentencing function.’ [Citation.]” (Id. at pp. 456–457.) In Black II, the court said with respect to the issue: “Because Cunningham, Blakely, and Apprendi explicitly acknowledge that the federal right to jury trial does not extend to the fact of a prior conviction, we decline to speculate that the high court will change its position on that issue. (See [People v.] McGee [(2006)] 38 Cal4th [682,] 707–709 [discussing the continuing validity of the Almendarez-Torres exception; see also Rangel-Reyes v. United States (2006) ___ U.S. ___ [165 L.Ed.2d 910, 126 S.Ct. 2873] [on denial of petition for writ of certiorari, Justice Stevens stated that although he believes Almendarez-Torres was wrongly decided, he found insufficient reason to overrule the holding in that case].)” (Black II, supra, 41 Cal.4th at p. 819, fn. 8.) Until either the United States Supreme Court or the California Supreme Court changes its position on the issue, this court is bound by these decisions by courts of superior jurisdiction. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J., CHAVEZ, J.
The current CALCRIM No. 801 instruction reads as follows: “The defendant is charged [in count ___ ] with mayhem. To prove that the defendant is guilty of mayhem, the People must prove that the defendant caused serious bodily injury when (he/she) unlawfully and maliciously: [1. Removed a part of someone’s body(;/.)] [OR] [2. Disabled or made useless a part of someone’s body and the disability was more than slight or temporary(;/.)] [OR] [3. Permanently disfigured someone(;/.)] [OR] [4. Cut or disabled someone’s tongue(;/.)] [OR] [5. Slit someone’s nose[,]/ear[,]/ [or]lip) (;/.)] [OR] [6. Put out someone’s eye or injured someone’s eye in a way that so significantly reduced (his/her) ability to see that the eye was useless for the purpose of ordinary sight.] Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else. [A serious bodily injury means a serious impairment of physical condition. Such an injury may include [, but is not limited to]: (protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).] [_______ is a serious bodily injury. [insert a description of injury when appropriate; see Bench Notes] [A disfiguring injury may be permanent even if it can be repaired by medical procedures.]” (CALCRIM No. 801.)
CALJIC No. 9.30 defines mayhem as follows: “Every person who unlawfully and maliciously deprives a human being of a member of [his] [her] body, or disables, permanently disfigures, or renders it useless, or who cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of the crime of mayhem in violation of Penal Code section 203. [¶] In order to prove this crime, each of the following elements must be proved: 1. One person unlawfully and by means of physical force [deprived a human being of a member of [his] [her] body or, disabled, permanently disfigured, or rendered it useless;] [or] [_______ of a human being;] and [¶] 2. The person who committed the act causing the bodily harm, did so maliciously, that is, with an unlawful intent to vex, annoy, or injure another person.”