Filed 8/28/23 P. v. Johnson CA6
`NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
`
`
`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
`
`SIXTH APPELLATE DISTRICT
`
`
` H049257
` (Monterey County
` Super. Ct. No. 18CR010752)
`
` ORDER MODIFYING OPINION
` AND DENYING PETITION FOR
` REHEARING
`
` NO CHANGE IN JUDGMENT
`
`
`THE PEOPLE,
`
`
`Plaintiff and Respondent,
`
`v.
`
`
`DONAVAN WAYNE JOHNSON,
`
`
`Defendant and Appellant.
`
`
`
`On page 30, at the end of the third full paragraph, insert the following
`
`
`It is ordered that the opinion filed herein on August 2, 2023, be modified as
`follows:
`
`footnote:
`
`In a petition for rehearing, Johnson seeks rehearing on the ground the court failed
`to specifically address his related argument that the trial court erred by imposing upper
`terms based on facts that were already used to enhance his punishment, citing section
`1170, subdivision (b)(5). Trial counsel failed to raise this objection at Johnson’s
`sentencing hearing and the argument is forfeited. “[C]omplaints about the manner in
`which the trial court exercises its sentencing discretion and articulates its supporting
`reasons cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th
`331, 356 (Scott).) Forfeiture will apply to “claims involving the trial court’s failure to
`properly make or articulate its discretionary sentencing choices,” including “cases in
`which the court purportedly erred because it double-counted a particular sentencing
`factor, misweighed the various factors, or failed to state any reasons or to give a
`
`

`

`sufficient number of valid reasons.” (Id. at p. 353.) Even if Johnson did not forfeit this
`argument, however, it is without merit. There can be no doubt Johnson inflicted harm on
`K.R. well in excess of that which would support his convictions and the true findings on
`the charged enhancements. “[T]he use of force or fear beyond that which is necessary for
`the accomplishment of the defendant’s criminal purpose may be considered as a factor in
`aggravation.” (People v. Reeder (1984) 152 Cal.App.3d 900, 922.)
`
`There is no change in the judgment. Appellant’s petition for rehearing is denied.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`_______________________________
`Bamattre-Manoukian, Acting P.J.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`__________________________
`Wilson, J.
`
`___________________________
`Danner, J.
`
`2
`
`

`

`THE PEOPLE,
`
`
`Plaintiff and Respondent,
`
`v.
`
`
`DONAVAN WAYNE JOHNSON,
`
`
` H049257
` (Monterey County
` Super. Ct. No. 18CR010752)
`
`Filed 8/2/23 P. v. Johnson CA6 (unmodified opinion)
`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.
`
`
`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
`
`SIXTH APPELLATE DISTRICT
`
`
`Defendant and Appellant.
`
`
`
`A jury convicted defendant Donavan Wayne Johnson of multiple offenses,
`including one count of torture, after he repeatedly slashed and stabbed the mother of his
`children with a box cutter. The trial court sentenced him to life in prison plus 11 years
`and four months.
`
`On appeal, Johnson raises the following arguments related to his convictions:
`(1) there was insufficient evidence to support his conviction for torture; (2) the trial court
`erred in admitting expert testimony on intimate partner violence; (3) the trial court
`misinstructed the jury on the crime of torture; (4) the cumulative effect of the errors
`warrants reversal; and (5) he cannot be convicted for violating both Penal Code
`section 245,1 subdivision (a)(1) and subdivision (a)(4).
`
`Johnson also raises multiple issues regarding his sentencing: (1) the trial court
`misapplied section 654 with respect to several counts; (2) he is entitled to resentencing as
`a recent amendment to section 654 gives the trial court discretion to stay a longer term as
`
`
`1 Unspecified statutory references are to the Penal Code.
`
`

`

`opposed to a lesser term; (3) he is entitled to resentencing because the trial court no
`longer has the authority to impose an upper term sentence unless a jury has found true the
`aggravating circumstances; (4) his one year term for misdemeanor child endangerment
`was unauthorized; (5) the record must be corrected to reflect that the trial court did not
`impose a fine under section 1202.5; and (6) at resentencing, the trial court must consider
`dismissing enhancements under recent amendments to section 1385.
`
`For the reasons explained below, we will reverse the judgment for the limited
`purpose of resentencing.
`FACTUAL AND PROCEDURAL BACKGROUND
`I.
`A. Procedure
`On March 1, 2021, the Monterey County District Attorney filed an amended
`information charging Johnson with attempted premeditated murder (§§ 664, 187,
`subd. (a); count 1); aggravated mayhem with an enhancement for personal use of a
`deadly weapon (§§ 205, 12022, subd. (b)(1); count 2); torture (§ 206; count 3); attempted
`kidnapping with an enhancement for great bodily injury involving domestic violence
`(§§ 664, 207, subd. (a), 12022.7, subd. (e); count 4); domestic violence with
`enhancements for personal use of a deadly weapon and inflicting great bodily injury
`(§§ 273.5, subd. (a), 12022, subd. (b)(1), 12022.7, subd. (e); count 5); assault with force
`likely to cause great bodily injury with an enhancement for inflicting great bodily injury
`(§§ 245, subd. (a)(4), 12022.7, subd. (e); count 6); first degree burglary (§§ 459, 460,
`subd. (a), 462, subd. (a); count 7); misdemeanor child endangerment (§ 273a, subd. (b);
`count 8), and assault with a deadly weapon with an enhancement for inflicting great
`bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (e); count 9).
`At the conclusion of the trial, the jury found Johnson not guilty of attempted
`murder (count 1), aggravated mayhem (count 2), attempted kidnapping (count 4), and
`first degree burglary (count 7). The jury convicted Johnson of torture (count 3), domestic
`violence (count 5), assault with force likely to produce great bodily injury (count 6), child
`
`2
`
`

`

`endangerment (count 8), assault with a deadly weapon (count 9), the lesser included
`offense of simple mayhem (count 2), and the lesser included offense of attempted false
`imprisonment (count 4). The jury also found true the enhancements for personal use of a
`deadly weapon and infliction of great bodily injury on all the associated counts on which
`Johnson had been convicted, i.e., the lesser included offense of simple mayhem (count 2),
`domestic violence (count 5), and assault with force likely to produce great bodily injury
`(count 6).
`On July 1, 2021, the trial court sentenced Johnson to a life term for torture
`(count 3).2 The court also imposed a consecutive determinate term of 11 years and four
`months, consisting of the upper term of four years for domestic violence (count 5) plus
`five years for the great bodily injury enhancement, one year for the deadly weapon
`enhancement, four months (one-third the middle term of one year) for attempted false
`imprisonment (count 4) and 364 days for misdemeanor child endangerment (count 8).
`Pursuant to section 654, the court imposed and stayed the following terms: (1) an
`upper term of eight years for simple mayhem plus one year for personal use of a weapon
`(count 2); (2) an upper term of four years for assault with force likely to cause great
`bodily injury, plus five years for the inflicting great bodily injury (count 6); and (3) an
`upper term of four years for assault with a deadly weapon (count 9).
`The trial court imposed a $5,000 restitution fund fine (§ 1202.4, subd. (b)), a
`parole violation restitution fund fine of $5,000 (§ 1202.45) (stayed pending successful
`completion of parole), $3,583.53 in victim restitution (§ 1202.4, subd. (f)), a $280 court
`operations assessment (§ 1465.8, subd. (a)(1)), and a $210 court facilities assessment
`(Gov. Code, § 70373).
`Johnson timely appealed.
`
`
`2 Pursuant to section 3046, Johnson will be eligible for parole after seven years, so
`
`his term is “seven years to life.”
`
`3
`
`

`

`
`
`B. Facts
`
`1. Prosecution case
`At approximately 11:00 a.m. on November 12, 2018, Salinas Police Officer James
`Knowlton responded to a report of a domestic disturbance in the City of Salinas. On the
`way, Knowlton saw a vehicle described as belonging to the suspect driving away from
`the scene. When Knowlton activated his lights and siren, Johnson began driving
`erratically, running two red lights, before stopping in front of the emergency department
`at Natividad Medical Center. Johnson got out of the car and stood next to it. Knowlton
`pointed his firearm at Johnson and ordered him to get on the ground, but Johnson was
`uncooperative. Knowlton repeated his command three or four times before Johnson
`ultimately complied. Johnson was agitated and said something about his passenger
`needing help. As Knowlton and another officer handcuffed Johnson, Knowlton saw K.R.
`sitting in the passenger seat, bleeding from a cut on her forehead. After hospital
`personnel took K.R. inside, Knowlton searched the vehicle and saw a black box cutter on
`the center console.
`Salinas Police Officer Joseph Kinney also responded to the domestic disturbance
`report and, on his arrival at Natividad Medical Center, he observed other officers taking
`Johnson into custody. Kinney approached Johnson’s vehicle and saw K.R. in the
`passenger seat. K.R. was bleeding “profusely” from a “pretty deep” cut on her forehead.
`K.R. told Kinney she had cuts to her legs as well and Kinney did not think she could walk
`on her own. Emergency room personnel came out and took her inside for treatment.
`Kinney followed, and the video, including audio, from his body camera was played for
`the jury. Photographs of K.R.’s wounds when she was in the hospital were admitted into
`evidence and showed cuts on her forehead, near her left ear, on her right arm, and on both
`legs.
`
`An investigator for the district attorney, Tim Willmore, went to see K.R. while she
`was at the hospital. K.R. was in a wheelchair, with her left leg immobilized and extended
`
`4
`
`

`

`in a brace. He observed that the cut on her forehead was, in his estimation, three to
`three-and-a-half inches in length. He described the other cuts near her ear and arm as
`being between two and three inches long. Willmore noted that K.R. had a defensive
`wound on the webbing of her right hand, between her thumb and index finger. When
`Willmore saw K.R. again in December 2018, she could walk slowly, with a limp, and had
`difficulty moving her left leg which was still in a brace.
`Over two years later, in February 2021, Isabelle Diaz, also an investigator with the
`district attorney’s office, visited K.R. at the clothing store where she was working. K.R.
`was sitting behind a partition so Diaz could not tell if she continued to have trouble
`walking or if she had a cane or other assistive device. However, K.R. had a visible scar
`running from the top of her forehead down toward her right ear.
`K.R.’s 911 call was played for the jury, although she did not testify.3 In that call,
`K.R. told the dispatcher she was at home along with her grandmother, her great
`grandmother, and her children. She said Johnson, her “ex-boyfriend,” had messaged her
`saying he would break in the house and now he had arrived. K.R. reported that he had
`gotten out of his vehicle, jumped over a fence, and entered the house. Johnson could be
`heard telling K.R. that she was “get[ting] on [his] fucking nerves!” He then yelled “Get
`in (unintelligible) my fuckin’ car!” Johnson told K.R. “All you have to do is . . . talk to
`me,” after which a child could be heard yelling “Let her go!” and “Stop!” several times.
`K.R. and her grandmother could also be heard yelling at Johnson to stop and to let K.R.
`go. Johnson asked K.R. if she “want[ed] to press charges” and “you think I’m fucking
`with you, huh? . . . You thinking you can fuck with them?” Johnson said, “now I gotta
`
`3 It is not clear why K.R. did not testify, but she failed to appear on the first day of
`
`jury voir dire. At the prosecutor’s request, the court issued an order to show cause (OSC)
`as to why it should not hold K.R. in contempt. On the second day of jury voir dire, the
`prosecutor asked that the court vacate the OSC, noting that K.R. appeared that day. The
`prosecutor stated that if K.R. voluntarily appeared to testify at trial, she would decide at
`that time whether to call her as a witness. During the prosecutor’s opening statement, she
`informed the jury that K.R. would not testify, but the jurors would hear the 911 call.
`
`5
`
`

`

`go to jail.” K.R.’s grandmother said she had the kids, as K.R. could be heard screaming.
`Johnson repeated “Let’s go!” followed by “I swear I’ll start cutting her ass too . . . Let’s
`go!”
`
`Johnson told K.R. there was something “all over you [i.e., K.R.].” K.R. said
`repeatedly she did not want to go, and Johnson replied, “No, fuck that I’m not messin’
`with you no more. No ‘cause you ignore me every fuckin’ time. Fuck, no! Let’s go!”
`When K.R. continued to refuse, Johnson said, “I’ll cut your ass some more then.”
`Johnson said that he did not care about going to jail, “I don’t give a fuck. Your legs are
`open. Like open—open—open look. Look at your fuckin’ leg. No, you gonna fuckin’
`die like seriously you don’t listen.” Just before the call ended, K.R. told Johnson, “No,
`go away run. Run.”
`After the incident, investigating officers went to the residence and photographed
`blood trails and droplets both inside the house and on the driveway.
`The prosecution introduced a recorded jail call from Johnson to his mother. In
`that call, Johnson said he knew that K.R. was “fine,” but he was worried about the
`children. Johnson said he did not care if K.R. was seeing anyone else, but her staying out
`late and being absent from the house was affecting the children. He criticized K.R. for
`seeing another man, letting that man drive the car that Johnson left for K.R., and having
`that man take care of the children while K.R. was at work. Johnson referred to this man
`as “the dude . . . that caused all this” and said “if [K.R.] wasn’t fuckin’ with this dude that
`night we woulda never had no argument. . . . It woulda never came to this.” Later in the
`conversation, Johnson told his mother, “My life has to get taken away ‘cause of this
`dude.”
`Dr. Mindy Mechanic testified as an expert on victim partner abuse. Dr. Mechanic
`said that such abuse involves a pattern of behavior that can include physical violence, as
`well as emotional/psychological abuse. The abuser will often quickly shift from being
`violent toward the victim to being loving and kind, which is confusing to the victim. The
`
`6
`
`

`

`abuser also often blames the victim, and victims often blame themselves for the violence,
`going so far as to protect the abuser. A victim is at most risk of escalated, possibly lethal,
`violence in the period just before, during, or in the months after separating from the
`abuser. In Dr. Mechanic’s opinion, abusers offer many different excuses for their
`conduct, such as financial stress or housing insecurity, but those stressors are not causal.
`Dr. Mechanic confirmed that she was not aware of the facts involved in this particular
`case, had not reviewed any of the evidence, and did not know either K.R. or Johnson.
`
`2. Defense case
`
`
`a. Johnson’s testimony
`Johnson testified he and K.R. started dating during their senior year in high school
`and had four children together. At the time of trial, their oldest child was 11 and the
`youngest was three years old. Before the incident, the family became homeless and
`stayed in various places, including K.R.’s mother’s home. Johnson and K.R. broke up in
`August 2018.
`On Friday, November 10, 2018, Johnson traveled to Arizona with the children but
`not K.R. Over the next three days,4 Johnson slept very little. During the drive back to
`Salinas, Johnson communicated with K.R. on the phone and via text messages, discussing
`whether they would get back together. Johnson began thinking about killing himself, and
`during a restroom stop, he purchased a box cutter at the gas station in order to slash his
`wrist.
`
`Johnson arrived in Salinas with the children around 3:00 or 4:00 a.m. He and K.R.
`talked in the living room and in the garage area about their relationship and his thoughts
`of suicide. Johnson went outside and slept in his car for an hour before heading to work
`around 6:00 a.m. the next day.
`
`
`4 Johnson was not asked what day he returned to Salinas, but the incident occurred
`on November 12 which is only two days after he drove to Arizona.
`
`7
`
`

`

`Johnson later contacted K.R. and, on learning she planned to take a taxi to work,
`Johnson offered to drive her there instead. When he arrived at her house, K.R. said she
`did not want a ride which confused him. Johnson decided he would leave with the
`children, so he placed them in his car. However, after around five minutes, Johnson took
`the children back inside and drove back to work.
`After work, Johnson went back to K.R.’s house to talk to her, but the front door
`was locked. Johnson heard K.R. tell their son not to open the door, so he jumped over the
`fence to the backyard and came through a window. Johnson testified that he was
`sleep-deprived, and was feeling depressed, angry, and suicidal. When he saw K.R.,
`Johnson yelled at her, and she yelled back at him. Johnson said that K.R.’s godmother
`and her grandmother were also yelling, so he grabbed K.R. by her sweater and tried to
`take her outside, “away from all the confusion.”
`As Johnson was pulling K.R. toward the front door, she was able to stop her
`momentum and punched him in the genitals, stomach, and face. K.R. grabbed and
`twisted his testicles, at which point, Johnson “lost it.” He took the box cutter out of his
`pocket and swung it at K.R., three or four times. Johnson did not intend to cut her and
`was not aware that he had done so at first. Johnson stopped when he saw “blood coming
`down her face.” Johnson was still agitated and yelling, but he tried to tell K.R. he needed
`to get her to the hospital. K.R. kept telling him it was not serious and that Johnson
`should run.
`Johnson told K.R. she needed to stop fighting him about going to the hospital, but
`it was only after he told her “I’ll cut your ass some more” that she realized the
`seriousness of her injuries. When Johnson said her leg was “[cut] open,” she started to
`“freak.” He then picked her up and put her in his car. Johnson grabbed some towels to
`wrap around her legs to stop the bleeding, then drove toward Natividad Medical Center.
`On the way, Johnson noticed that the police were following him, with their lights and
`sirens. Because K.R. needed help, he did not stop and even ran two stop signs and a red
`
`8
`
`

`

`light to get K.R. to the hospital as quickly as possible. Johnson did not know the extent
`of K.R.’s injuries until six months later when he saw the photos of her wounds.
`Johnson testified that he was not disputing that he assaulted K.R., committed an
`act of domestic violence, and inflicted great bodily injury on her. However, Johnson
`denied that he had any plan to kill, disable, or disfigure her or that he intended to cause
`her great pain and suffering as an act of revenge. Johnson was more than a foot taller
`than K.R.5 and much stronger physically. Johnson testified that he did not act out of
`jealousy that night, as he and K.R. had been with other people in the past.
`Johnson admitted that, since he has been in custody, he was involved in two fights
`and, in the latter incident, threatened a correctional officer. In the first fight, Johnson and
`six other inmates attacked a second group of six inmates. Johnson punched one inmate in
`the head, pushed another to the ground, and kicked a third inmate in the head. In the
`second fight, Johnson punched another inmate in the face several times, and then
`threatened a deputy sheriff who responded to the incident.
`
`b. Other defense evidence
`Lynda Gates, a defense investigator, testified that she met K.R. on November 30,
`2020, at the restaurant where K.R. worked as a waitress. Gates observed that K.R. did
`not have a limp while walking, nor did she use a cane.
`Merriam Young, a critical care registered nurse, testified as an expert in
`interpreting medical records and “explanation[s] of traumatic injuries.” In preparing for
`her testimony, Young reviewed K.R.’s medical records as well as the photographs of
`K.R.’s injuries. Young noted that, when she arrived at the hospital, K.R.’s heart rate was
`high and her blood pressure was low, both of which were triggered by blood loss. K.R.
`was given a blood transfusion to prevent her from going into shock, which would have
`impaired major organs and would potentially be fatal. According to the medical records,
`
`5 Johnson testified that he is six foot four inches tall whereas K.R. is either five or
`five foot one inches tall.
`
`9
`
`

`

`K.R. had seven cuts that were sutured but did not require surgery: a three-centimeter
`laceration near her left temple, a four-centimeter cut on the left side of her scalp, an
`eight-centimeter cut on her forehead that was deeper and required more than one layer of
`sutures, a four-centimeter cut on her arm, a cut on the webbing of her left hand between
`her thumb and index finger, a 15-centimeter laceration on her left shoulder that required
`multiple layers of sutures, and a 10-centimeter cut on her left knee which also required
`more than one layer of sutures. One of the lacerations went into K.R.’s left knee and an
`orthopedic surgeon repaired her lateral-collateral ligament, lateral meniscus, as well as a
`perineal nerve. On K.R.’s right leg, the orthopedic surgeon repaired a quadriceps muscle
`that attaches to the outside of the knee and K.R.’s hamstring tendon.
`
`3. Prosecution rebuttal
`Leslie Chiang, a trauma nurse, acted as a scribe during K.R.’s treatment in the
`emergency room at Natividad Medical Center. K.R.’s injuries when she arrived were
`potentially fatal because of the nature of the wounds and her vital signs. Chiang testified
`that if someone’s perineal nerve is severed, they would be unable to lift their foot.
`Chiang also said that a cut hamstring makes it impossible to walk and, even after the
`hamstring is repaired, a person would require extensive rehabilitation to be able to walk
`again.
`
`DISCUSSION
`II.
`A. Sufficiency of the evidence supporting torture conviction
`Johnson advances two arguments to support his position that the evidence
`presented at trial was insufficient to support his torture conviction. First, he argues that
`voters6 intended section 206 to apply to only the most violent, heinous, and callous
`
`6 Section 206 was adopted by the California electorate in June 1990 as part of
`Proposition 115, also known as the “Crime Victims Justice Reform Act.” (Raven v.
`Deukmejian (1990) 52 Cal.3d 336, 340.) Proposition 115’s “stated general purpose [was]
`to adopt ‘comprehensive reforms . . . needed in order to restore balance and fairness to
`(continued)
`
`10
`
`

`

`conduct, and that the evidence was insufficient to show that his conduct met those
`criteria. Second, Johnson argues that, even under a broader construction of section 206,
`the evidence was insufficient. We disagree with both arguments.
`
`1. Applicable legal principles
`In considering a claim of insufficient evidence, we “review the whole record in the
`light most favorable to the judgment below to determine whether it discloses substantial
`evidence—that is, evidence which is reasonable, credible, and of solid value—such that a
`reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
`(People v. Johnson (1980) 26 Cal.3d 557, 578.) “Although it is the jury’s duty to acquit a
`defendant if it finds the circumstantial evidence susceptible of two reasonable
`interpretations, one of which suggests guilt and the other innocence, it is the jury, not the
`appellate court that must be convinced of the defendant’s guilt beyond a reasonable
`doubt.” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) “Simply put, if the
`circumstances reasonably justify the jury’s findings, the judgment may not be reversed
`simply because the circumstances might also reasonably be reconciled with a contrary
`finding.” (People v. Farnam (2002) 28 Cal.4th 107, 143 (Farnam).)
`Section 206 provides, “ ‘Every person who, with the intent to cause cruel or
`extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any
`sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the
`person of another, is guilty of torture. [¶] The crime of torture does not require any proof
`that the victim suffered pain.’ ” The crime of torture has two elements: “(1) a person
`inflicted great bodily injury upon the person of another, and (2) the person inflicting the
`injury did so with specific intent to cause cruel and extreme pain and suffering for the
`
`
`our criminal justice system.’ ” (Ibid.) To that end, “the measure adopt[ed] a variety of
`changes and additions to our state Constitution and statutes” (id. at p. 342), including
`section 206, which defined the crime of torture, and section 206.1, which prescribed its
`punishment. (People v. Barrera (1993) 14 Cal.App.4th 1555, 1559.)
`
`11
`
`

`

`purpose of revenge, extortion, persuasion, or for any sadistic purpose.” (People v. Baker
`(2002) 98 Cal.App.4th 1217, 1223.) Evidence of intent to cause cruel or extreme pain
`and suffering, like other forms of intent, is usually circumstantial. (People v. Pre (2004)
`117 Cal.App.4th 413, 419-420 (Pre).)
`“The torture offense contained in section 206 was adopted by the voters to ‘fill[] a
`gap in existing law dealing with extremely violent and callous criminal conduct.’
`[Citation.] ‘[T]orture as defined in section 206 focuses on the mental state of the
`perpetrator and not the actual pain inflicted.’ ” (Pre, supra, 117 Cal.App.4th at
`pp. 419-420.) Accordingly, a defendant need not inflict “permanent, disabling, or
`disfiguring injuries” on the victim in order to violate the statute, as “ ‘[s]ection 206 only
`requires “great bodily injury as defined in Section 12022.7.” ’ ” (Id. at p. 420.) Nor does
`the statute “ ‘require any proof that the victim suffered pain.’ (§ 206.) The statutory
`requirement of an intent to inflict ‘cruel’ pain and suffering has been interpreted to
`require that the defendant had an intent to inflict extreme or severe pain.” (Ibid.)
`Furthermore, unlike the intent required to convict a defendant of murder by
`torture, “section 206 does not require that the defendant act with premeditation or
`deliberation or that the defendant have an intent to inflict prolonged pain.” (Pre, supra,
`117 Cal.App.4th at p. 420.) As a result, “the brevity of the attack does not, in and of
`itself, compel a conclusion the defendant must be acquitted of torture.” (Ibid.) Likewise,
`“ ‘[s]everity of a victim’s wounds is not necessarily determinative of intent to torture’
`since ‘[s]evere wounds may be inflicted as a result of an explosion of violence [citations]
`or an “act of animal fury” ’ rather than an intent to inflict pain for revenge, extortion,
`persuasion, or other sadistic purpose.” (Id. at pp. 420-421.)
`
`2. Voters intended section 206 to proscribe this type of conduct
`We first address Johnson’s claim that the voters, in adopting section 206, did not
`intend that the type of conduct at issue in this case would qualify as torture under the
`statute. In support of this argument, Johnson notes that section 206 was enacted in
`
`12
`
`

`

`response to the fact that the defendant in People v. Singleton (1980) 112 Cal.App.3d 418,
`who had committed horrific crimes,7 was released on parole after serving only seven
`years of his total sentence of 14 years and four months. (Pre, supra, 117 Cal.App.4th at
`p. 425.) In his view, the voters intended section 206 to apply only to such heinous and
`appalling conduct, not to convert all acts of aggravated assault into torture. Johnson cites
`Justice McIntyre’s concurring and dissenting opinion in Pre, supra, 117 Cal.App.4th at
`page 426, specifically his critique that “application of [section 206] has expanded, by
`judicial accretion, to any assault in which the victim suffers ‘great bodily injury’ where
`the jury infers an intent to inflict cruel and extreme pain, regardless of whether the
`assailant’s conduct was extremely violent and callous[,] [citations]” thus subjecting a
`defendant “to a life sentence rather than a two- to four-year sentence applicable to an
`aggravated assault conviction [citation], even if the crime was not particularly heinous
`and the injuries were not particularly substantial.” (Ibid.)
`“In interpreting a voter initiative . . . , we apply the same principles that govern
`statutory construction. [Citation.] Thus, ‘we turn first to the language of the [initiative],
`giving the words their ordinary meaning.’ [Citation.] The [initiative’s] language must
`also be construed in the context of the statute as a whole and the [initiative’s] overall . . .
`scheme.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) “Absent ambiguity, we presume
`that the voters intend the meaning apparent on the face of an initiative measure [citation]
`and the court may not add to the statute or rewrite it to conform to an assumed intent that
`is not apparent in its language.” (Lesher Communications, Inc. v. City of Walnut Creek
`(1990) 52 Cal.3d 531, 543.)
`We agree with the majority opinion in Pre that Johnson’s argument is meritless:
`“[The] characterization [in the dissent] disregards the fact that for a torture conviction the
`
`
`7 Singleton kidnapped and brutally sexually assaulted a 15-year-old girl before
`using a hatchet to cut off both her hands and push her into a culvert. (People v.
`Singleton, supra, 112 Cal.App.3d at pp. 421-422.)
`
`13
`
`

`

`jury must not only find the defendant inflicted great bodily injury but also that the
`defendant intended to do so for the purpose of revenge, extortion, persuasion, or some
`other sadistic purpose. This additional intent requirement distinguishes the offense of
`torture from an aggravated assault and is clearly a matter for a jury to determine.” (Pre,
`supra, 117 Cal.App.4th at p. 423, italics added.) Had the voters intended to require that
`section 206 only apply to “particularly heinous” crimes and “particularly substantial”
`injuries, they could have so provided when enacting section 206. They did not. The
`plain language of the statute does not require that the prosecutor prove the defendant
`inflicted any specific injury or even that the victim suffered pain as a result.
`Consequently, Johnson’s actions in this case fall within the parameters of section 206.
`3. Sufficient evidence Johnson tortured K.R.
`In his second insufficiency of the evidence argument, Johnson contends there was
`insufficient evidence to show that he acted with the requisite “intent to cause cruel or
`extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any
`sadistic purpose.” (§ 206.) Johnson claims that his actions could not “lead to a
`reasonable inference that he specifically intended to inflict cruel or extreme pain and
`suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose”
`because he “never subdued K.R. or changed the purpose of the attack to a robbery or
`other purpose[;]” and the attack “was an indiscriminate explosion of anger that lasted
`about three or four minutes.” We disagree.
`As noted above, evidence of the intent to cause cruel or extreme pain and suffering
`is usually circumstantial. (Pre, supra, 117 Cal.App.4th at pp. 419-420.) “Intent is a state
`of mind. A defendant’s state of mind must, in the absence of the defendant’s