People v. Reed

Opinion

SIMS, J.

Defendant pled guilty to mayhem (Pen. Code, § 203) and was sentenced to the upper term of six years in state prison. On appeal, she contends the trial court erred in citing viciousness as a circumstance in aggravation to support imposition of the upper term. We disagree and affirm.

[491]

Factual and Procedural Background

Defendant and her victim became involved in a barroom altercation, which touched off a scuffle over a ring defendant claimed had been stolen from her and given to the victim. In the course of the fight, defendant slashed the victim’s face with a razor-sharp box cutter. The wound extended from the bridge of the victim’s nose down the left side of her face to a point just below the jawline and required 70 stitches for closure. A permanent scar resulted.

Defendant ultimately pled guilty to violation of Penal Code section 203, mayhem.

In imposing the upper term for mayhem, the trial court stated the following on the record: “I am going to impose the higher term because the attack here, the crime, was especially vicious because the Defendant has an extensive previous record for dangerous—for violent criminal acts which clearly manifest dangerousness. She was on parole at the Youth Authority at the time she committed the present offense. She had failed on juvenile probation. She had failed on Youth Authority parole.

“There are some facts in mitigation. Her limited mental capacities, the fact that she was, to some extent, intoxicated at the time she committed the offense, the fact that, to some extent, the victim provoked the attack by oral provocations, and the fact that the—apparently the Defendant believed she had the right to take the ring from the hand of the victim, the facts—however, those facts in mitigation in my view are substantially outweighed by the facts in aggravation which I previously enumerated, and they justify the higher term, and public safety demands I think the higher term be imposed here.”

Discussion

Defendant’s contention is the court erred by citing viciousness, according to her an element of the crime of mayhem, as an aggravating circumstance of her offense that justified imposing the upper term. She bases this claim of error on rule 441(d) of the California Rules of Court which prohibits the use of an element of a crime to support imposition of the upper term.