People v. Pre

McINTYRE, J., Concurring and Dissenting.

I agree with the majority’s analyses of Pre’s contentions on appeal, except as to the sufficiency of the evidence to support the jury’s finding that Pre acted with the specific intent to cause cruel or extreme pain or that he acted for revenge, persuasion or any sadistic purpose. On this latter issue, I respectfully dissent.

The crime of torture was codified in California in June 1990, when the California electorate passed Proposition 115 in response to the facts in People v. Singleton (1980) 112 Cal.App.3d 418 [ 169 Cal.Rptr. 333 ]. (People v. Jung (1999) 71 Cal.App.4th 1036, 1044 [ 84 Cal.Rptr.2d 5 ] (dis. opn. of Armstrong, J.).) In that case, Singleton kidnapped and sexually abused his victim, then chopped off her hands and dumped her in a ditch in a remote location. He was later charged with and convicted of attempted murder, mayhem, kidnapping and multiple sex crimes, which resulted in a sentence of fourteen years, four months in prison. Singleton was paroled after having served just seven years in prison and thereafter the new crime of torture was included in “Proposition 115 ‘to insure that crimes such as Singleton’s receive a minimum punishment of life imprisonment.’ ” (Id. at p. 1048, quoting Sen. Com. on Judiciary, Assem. Com. on Public Safety, Joint Hearing on Crime Victims Justice Reform Act (1990) pt. 3, at p. 005.)

Penal Code section 206 was not intended to alter the existing legal definition of torture, but was codified to ensure that conduct amounting to torture would be punished by no less than life in prison even in situations where the victim survives, as in Singleton. (People v. Barrera (1993) 14 Cal.App.4th 1555, 1564 [ 18 Cal.Rptr.2d 395 ].) The majority recognizes as much, noting that the adoption of Penal Code section 206 was intended “to fill[] a gap in existing law dealing with extremely violent and callous criminal conduct.” (Maj. opn, ante, at p. 419, quoting People v. Barrera, supra, 14 Cal.App.4th at p. 1573 .)

*426 Notwithstanding the original intent underlying the adoption of Penal Code section 206, the application of the statute 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. (See, e.g., People v. Hale (1999) 75 Cal.App.4th 94, 108 [ 88 Cal.Rptr.2d 904 ] [holding that the crime of torture focuses on the mental state of the perpetrator, not on whether actual pain was inflicted].) Under such an application of the statute, virtually any aggravated assault proscribed by Penal Code section 245 that results in great bodily injury may qualify as torture under Penal Code section 206; if the jury infers the requisite intent from the defendant’s conduct, the defendant will be subject to a life sentence rather than a two- to four-year sentence applicable to an aggravated assault conviction (Pen. Code, § 245, subd. (a)), even if the crime was not particularly heinous and the injuries were not particularly substantial. This is not what the voters intended in passing Proposition 115. In my view, a part of our function as a reviewing court is to see that the law is applied in accordance with its purpose and the intent underlying it.

As the majority opinion points out, our review of the sufficiency of the evidence to support the jury’s verdict is limited. However, I disagree with the majority’s conclusion that this limitation precludes us from finding that a reasonable trier of fact could not have inferred the requisite specific intent from the circumstances of Pre’s attack on Rose. In fact, no existing published case has recognized the crime of torture arising out of conduct similar to what Pre engaged in here. Without minimizing the nature of Pre’s attack on Rose and recognizing that Pre’s conduct may be viewed as somewhat unusual, I nonetheless conclude that the jury could not reasonably infer that Pre acted with the intent to cause cruel or extreme pain or for revenge, persuasion or any sadistic purpose from his conduct, which was neither “extremely violent and callous,” nor comparable to that involved in Singleton. A reasonable juror could not infer from the circumstances surrounding his attack on Rose that Pre intended to inflict cruel or extreme pain. Characterizing Pre’s actions against Rose as torture “redefine[s], and minimize[s], the gruesome and sadistic nature of torture, which has long been recognized as among the most heinous of human conduct. . . .” (People v. Jung, supra, 71 Cal.App.4th at p. 1049 (dis. opn. of Armstrong, J.).) For these reasons, I would reverse Pre’s conviction of torture.

Appellant’s petition for review by the Supreme Court was denied June 30, 2004.