People v. Lee
Opinion
Opinion
[Opinion certified for partial publication. [*] ]
OPINION
STRANKMAN, J.
A jury convicted Johnson Chun Lee of aggravated mayhem, mayhem, and assault with force likely to produce great bodily injury. (Pen. Code, §§ 205, 203, 245, subd. (a)(1).) [1] The jury also found that defendant intentionally inflicted great bodily injury during the assault. (§ 12022.7.) We have concluded that the conviction of aggravated mayhem must be reversed because the evidence was insufficient to support a determination that defendant specifically intended to disable his victim permanently.
On November 29, 1988, Ms. Jian Ai Li [2] lived in a second floor room, room 16, at 1329 Grant Avenue in San Francisco. Sixty-three-year-old Mr. Wing Sak Chu lived in room 11, and defendant lived in room 10.
At approximately 6:30 p.m., Li was washing dishes in the hallway outside of her room. Li's four-year-old son, Allen, was in Chu's room watching television. Li saw defendant push Allen out of Chu's room and shut the door. Li heard defendant ask Chu if he had or if he wanted a beer. Chu said no; then he started screaming for help. Li and Allen ran into their room and locked the door, since Li was frightened by…
lead Opinion
Strankman, J.
A jury convicted Johnson Chun Lee of aggravated mayhem, mayhem, and assault with force likely to produce great bodily injury. (Pen. Code, §§ 205, 203, 245, subd. (a)(1).) 1 The jury also found that defendant intentionally inflicted great bodily injury during the assault. (§ 12022.7.) We have concluded that the conviction of aggravated mayhem must be reversed because the evidence was insufficient to support a determination that defendant specifically intended to disable his victim permanently.
*323 I. Facts
On November 29, 1988, Ms. lian Ai Li 2 lived in a second floor room, room 16, at 1329 Grant Avenue in San Francisco. Sixty-three-year-old Mr. Wing Sak Chu lived in room 11, and defendant lived in room 10.
At approximately 6:30 p.m., Li was washing dishes in the hallway outside of her room. Li’s four-year-old son, Allen, was in Chu’s room watching television. Li saw defendant push Allen out of Chu’s room and shut the door. Li heard defendant ask Chu if he had or if he wanted a beer. Chu said no; then he started screaming for help. Li and Allen ran into their room and locked the door, since Li was frightened by fights.
Chu continued screaming, and Li looked through…
concurrence Opinion
White, J.
I concur with that portion of the judgment which holds there was insufficient evidence to support a conviction for aggravated mayhem. However, I dissent to the holding that the failure to instruct pursuant to CALJIC No. 2.02 was nonprejudicial.
If proof of specific intent to inflict great bodily injury rests on circumstantial evidence, the jury must be instructed pursuant to CALJIC No. 2.02. (People v. Salas (1976) 58 Cal.App.3d 460, 474 [ 129 Cal.Rptr. 871 ]; Com. to CALJIC No. 2.02 (5th ed. 1988) p. 26.) Consideration of the instructions as a whole does not cure the omission of CALJIC No. 2.02 in this case.
In the instant action it is difficult to understand defendant’s aberrant behavior. The victim could not explain why defendant assaulted him; nor is it clear whether defendant’s conduct resulted from intoxication. The mere fact that somebody punches or kicks another, without more, is insufficient to warrant a finding that the assailant harbored the specific intent to inflict great bodily injury. As the Attorney General acknowledges, defendant’s query in Cantonese, “Are you dying?,” was subject to various translations, including “Are you dead yet?” and “Are you okay?”