ARMSTRONG, J. — I respectfully dissent.
I do not believe that the record contains substantial evidence that appellants intended to cause Hyon cruel or extreme pain and suffering, a necessary element of the crime of torture, or that the conduct for which appellants were convicted constitutes torture within the meaning of Penal Code section 206. Consequently, I would reduce their torture convictions to the lesser included offense of battery.
[1044]As the majority notes, torture is a newly codified crime in California, created on June 5, 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]. (See Review of Selected California Legislation— Addendum — Proposition 115: The Crime Victims Justice Reform Act (1990-1991) 22 Pacific L.J. 1010, 1012.) Penal Code section 206 defines torture as follows: “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. ft[] The crime of torture does not require any proof that the victim suffered pain.”
In People v. Barrera (1993) 14 Cal.App.4th 1555 [18 Cal.Rptr.2d 395], the Court of Appeal considered a constitutional challenge to Penal Code section 206 on the grounds that it was vague and overbroad. The court noted that the statute enjoys “presumptive validity” and “ ‘ “. . . is sufficiently certain if it employs words of long usage or with a common law meaning ‘notwithstanding an element of degree in the definition as to which estimates might differ.’ ” ’ ” (Id. at p. 1563, citations omitted.)
The court in People v. Barrera concluded that “ ‘Torture’ has a longstanding, judicially recognized meaning.” (14 Cal.App.4th at p. 1563.) Quoting our Supreme Court in People v. Tubby (1949) 34 Cal.2d 72 [207 P.2d 51], the Barrera court continued: “ ‘Torture has been defined as the “Act or process of inflicting severe pain, esp. as a punishment in order to extort confession, or in revenge.” (Webster’s New Int. Diet. (2d ed.).) The dictionary definition was appropriately enlarged upon by this court in its original opinion in People v. Heslen, 163 P.2d 21, 27 in the following words: “Implicit in that definition is the requirement of an intent to cause pain and suffering in addition to death. That is, the killer is not satisfied with killing alone. He wishes to punish, execute vengeance on, or extort something from his victim, and in the course, or as the result of inflicting pain and suffering, the victim dies. That intent may be manifested by the nature of the acts and circumstances surrounding the homicide.”. . .’
“ ‘In determining whether the murder was perpetrated by means of torture the solution must rest upon whether the assailant’s intent was to cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity. The test cannot be whether the victim merely suffered severe pain since presumably in most murders severe pain precedes death.’ (People v. Tubby (1949) 34 Cal.2d 72, 76-77 [207 P.2d 51].)” (People v. Barrera, supra, 14 Cal.App.4th at pp. 1563-1564.) The Barrera court concluded: “Torture [1045]combines a specific state of mind with a particular type of violent conduct causing significant personal injury. ... As written, section 206 continues the Tubby definition.” (Id. at p. 1564.)
In order to secure a conviction for the offense of torture, the People are required to prove that the defendant intended to cause cruel or extreme pain and suffering. “A defendant’s state of mind must, in the absence of the defendant’s own statements, be established by the circumstances surrounding the commission of the offense. . . . The condition of the victim’s body may establish circumstantial evidence of the requisite intent. ‘In determining whether a murder was committed with that intent [to torture], the jury may of course consider all the circumstances surrounding the killing. Among those circumstances, in many cases, is the severity of the victim’s wounds.’ ” (People v. Mincey (1992) 2 Cal.4th 408, 433 [6 Cal.Rptr.2d 822, 827 P.2d 388], citations omitted.)
Thus, for example, in People v. Healy (1993) 14 Cal.App.4th 1137 [18 Cal.Rptr.2d 274], the defendant’s torture conviction was upheld based on the following conduct: “Over a period of approximately two weeks Healy battered Laura L. daily. He split her lips, broke her ribs, and stomped on her. He struck her in the jaw, back, arms, neck repeatedly. He flung her in the air so that she landed on the back of her head on the floor. She sustained a fractured jaw, ankle fractures, multiple rib fractures and bruises to her face and torso.” (Id. at p. 1139.) Moreover, the severity of the victim’s injuries was not the only evidence presented of the defendant’s intent to inflict cruel or severe pain. The defendant also told the victim that “she never had any real hardship in her life, she was wasting potential because of it, she needed someone to help her to realize her potential, he knew how she could ‘speed up the process,’ and that ‘he needed to create some hardship’ to get her to listen to him.” (Id. at p. 1141.) On those facts, the court found that there was ample evidence of the defendant’s intent to inflict extreme and prolonged pain.
In affirming a conviction for first degree torture murder in People v. Mincey, supra, 2 Cal.4th 408, the Supreme Court ruled that the element of intent to cause cruel pain and suffering can be inferred solely from the condition of the victim’s body provided that the wounds are sufficiently egregious to support the inference. The evidence there showed that the defendant beat the 5-year-old victim repeatedly over a period of 24 to 48 hours, resulting in hundreds of injuries, including stoppage of the intestinal tract and swelling of the brain. (Id. at p. 428.) While many of the injuries could have been caused by a hand hitting the victim, certain of them could only have been caused by a hard object, such as a board recovered from the [1046]scene. The doctor who conducted the autopsy testified that the victim experienced prolonged pain before his death. (Ibid.)
In People v. Raley (1992) 2 Cal.4th 870 [8 Cal.Rptr.2d 678, 830 P.2d 712], the defendant locked two teenage girls in a basement safe, beat them with a club, stabbed them repeatedly, bound them, put them in the trunk of his car where they remained overnight, and threw them down a ravine. One victim died, having suffered 41 stabs wounds and a fractured skull. The other survived; she had been stabbed 35 times, had a punctured abdomen, lacerations to the head, chest and thighs, and contusions to the head. (Id. at pp. 882-884.)
In People v. Jenkins (1994) 29 Cal.App.4th 287 [34 Cal.Rptr.2d 483], the defendant was convicted, among other things, of torture of a cohabitant. Over a period of six months, the defendant had beaten the victim on the chest, arms, legs and face with a variety of objects, including an iron pipe, a hammer, a screwdriver, a .357 magnum and a brick. Among the victim’s injuries were a collapsed lung, three to eight fractured ribs, a broken nose, swelling in both legs, puncture wounds on her legs, infections at the sites of the puncture wounds caused by the hammer and screwdriver, and scars on her face, chest and legs.
In People v. Proctor (1992) 4 Cal.4th 499 [15 Cal.Rptr.2d 340, 842 P.2d 1100], our Supreme Court found the following evidence sufficient to sustain a finding of torture murder: “In the present case, the victim was subjected to strangulation by two different methods, her wrists were bound so tightly as to cut into her skin, she was beaten in the face severely enough to have caused her eyes to be swollen shut and her lips to be swollen, she received severe blows to other parts of her body, and she suffered repeated, incision-type stab wounds to her neck, chest, and breast area.” (Id. at p. 531.) These latter wounds were described as “a number of shallow stab wounds and incisions caused by dragging a weapon across the skin in the area of the neck. The curvature of some of the injuries indicated they had been inflicted slowly and deliberately.” Indeed, the coroner who conducted the victim’s autopsy testified that these wounds were inflicted for the purpose of causing pain or fear. (Id. at pp. 516-517.)
In the each of the foregoing cases, the defendant’s intention to inflict extreme or cruel pain could be inferred from the circumstances of the case, including the nature, extent and severity of the wounds suffered by the victim. And in each case, the victim, if he or she survived the assault at all, suffered substantial, debilitating injuries: broken bones, punctured internal organs, multiple stab wounds and gunshot wounds.
[1047]As respondent notes, there is no requirement that the victim suffer pain in order for the defendant to be convicted of torture. (Pen. Code, § 206.) It is the People’s burden, however, to establish that the defendant intended to inflict cruel and extreme pain. Here, the victim testified to the pain he suffered at the hands of his assailants:1 Hyon said the assault “hurt.” That testimony does not support an inference that the people who caused Hyon to “hurt” intended to inflict extreme and cruel pain on him. Neither do the circumstances surrounding the crime support such an inference: Appellants, together with their fellow gang members, bound and blindfolded Hyon and took him to an isolated location. They could do with him what they wished. They did not elect to inflict severe and prolonged physical pain on Hyon. Instead, they chose to humiliate him in various ways: forcing him to dance while wearing women’s clothing and to drink urine, applying Ben-Gay to his penis, covering his body in alcohol, writing gang-related graffiti on him with felt markers, tattooing him and giving him hickeys. The prosecution presented no evidence that Hyon suffered substantial permanent physical injuries. To the contrary, the only evidence presented on the subject was that after being released, Hyon reported to the police that he felt “okay,” and that the detective who interviewed Hyon shortly after the kidnapping did not see any major injuries to Hyon, and did not believe that Hyon needed emergency medical care.
Members of appellants’ group did hit, kick, scratch and bite Hyon, bum him several times with a cigarette, and tattoo him during his captivity. The nature and severity of these actions, however, were not described at trial. The jury was not informed, for example, whether the bums on Hyon’s shoulders caused blisters, or whether the bites and scratches broke his skin. These acts certainly constitute battery and mayhem. And while the injuries qualify as great bodily injury within the meaning of section 12022.7 (see People v. Escobar (1992) 3 Cal.4th 740, 752 [12 Cal.Rptr.2d 586, 837 P.2d 1100] [abrasions, lacerations and bruising can constitute great bodily injury]), they do not constitute torture.
The majority describe the victim as “greatly disfigured and scarred.” I concur that scarring and disfigurement would in many cases constitute strong circumstantial evidence of an intent to inflict severe pain and suffering. (See, e.g., People v. Singleton, supra, 112 Cal.App.3d 418 [severed forearms]; People v. Healy, supra, 14 Cal.App.4th 1137 [fractured jaw, ankle and ribs, bruises to face and torso]; People v. Jenkins, supra, 29 Cal.App.4th 287 [fractured ribs, broken nose, puncture wounds on legs, scars on face, chest and legs].) Here, however, the evidence of disfigurement and scarring [1048]does not support the inference that appellants intended to inflict cruel pain on their victim: Hyon testified that he was burned with a cigarette once or twice on the shoulder, and that he was tattooed on the back, legs and arms. No evidence was admitted at trial concerning the severity of the cigarette burns or whether they left scars; photographs of Hyon admitted at trial show the tattoos. In my view, the record here does not support the conclusion that Hyon was “greatly disfigured and scarred,” or the inference that the majority draws from that conclusion: that appellants intended to inflict severe pain on Hyon.
As the facts of the cases detailed above make clear, appellants’ conduct simply did not come within the category of conduct, perhaps best described as inspired by pure evil, which the courts have determined to be torture, and which the electorate determined required a minimum life sentence. Penal Code section 206 was enacted by the People of the State of California in response to the particularly heinous facts of People v. Singleton, supra: The defendant kidnapped and sexually abused his victim, then chopped off her hands and dumped her in a ditch in a remote location. Miraculously, the victim survived. (People v. Singleton, supra, 112 Cal.App.3d at pp. 420-422.) The defendant was charged with and convicted of attempted murder, mayhem, kidnapping, and multiple sex crimes. He was sentenced to a total of fourteen years, four months in prison, and was paroled after having served just seven years in prison. (See Review of Selected California Legislation— Addendum — Proposition 115: The Crime Victims Justice Reform Act, supra, 22 Pacific L.J. 1010, 1013, fn. 23.) The new crime of torture was included as part of Proposition 115 “to insure that crimes such as Singleton’s receive a minimum punishment of life imprisonment.” (Sen. Com. on Judiciary, As-sem. Com. on Public Safety, Joint Hearing on Crime Victims Justice Reform Act (1990) pt. 3, at p. 005.) Or, as stated in the Argument in Favor of Proposition 115 which appeared on the ballot, the proposition’s “ ‘Singleton Torture Provision’ assures that no criminal will ever again rape a young girl and hack off her arms, and serve only a minimal punishment, such as the 7-1/2 years Singleton served.”
Penal Code section 206 was not enacted to redefine the legal definition of torture; that definition has remained constant throughout the years. (People v. Barrera, supra, 14 Cal.App.4th 1555, 1564.) Rather, the crime of torture was codified to ensure that conduct amounting to torture be punished by no less than life in prison, regardless of whether the victim happens to survive, as Lawrence Singleton’s victim did. Appellant’s conviction for torture does not satisfy the public will by ensuring that “crimes such as Singleton’s receive a minimum punishment of life imprisonment.” In no way can appellants’ crimes compare to the brutality and depravity of Lawrence Singleton’s.
[1049]In short, the evidence establishes that appellant committed battery and mayhem, and caused Hyon to suffer physical pain and acute emotional distress. It is not my intention to minimize either appellants’ conduct or the victim’s anguish. However, the evidence also establishes that appellants had an uninterrupted opportunity to inflict severe and prolonged physical pain on Hyon, but did not do so. Appellants did not testify to their intent to inflict cruel or extreme pain, and Hyon testified only that the assault on him “hurt,” without any indication that the physical contact between him and his assailants was more than superficial and fleeting. The police officer who examined Hyon immediately after the assault testified that he observed no significant injuries, and that he concluded that Hyon required no emergency medical attention. Hyon himself told the officer that he felt fine. A reasonable juror could not infer from these facts that appellants intended to inflict cruel or extreme pain.
The dictionary definition of “hazing” is “to initiate or discipline (fellow students) by forcing to do ridiculous, humiliating, or painful things.” (See Webster’s New World Diet. (3d college ed. 1991) p. 620.) This precisely describes what appellants and their cohorts did to Hyon, a rival gang member rather than a fellow student. This conduct was patently offensive, and constitutes battery, as well as the additional crimes of kidnapping and mayhem, of which appellants were convicted.2 However, to characterize appellants’ actions against Hyon, as offensive as they were, as torture is to redefine, and minimize, the gruesome and sadistic nature of torture, which has long been recognized as among the most heinous of human conduct as exemplified by the facts of People v. Singleton and the other torture cases recounted herein. As the Court of Appeal observed in People v. Barrera, supra, 14 Cal.App.4th 1555, 1564, “Torture combines a specific state of mind with a particular type of violent conduct causing significant personal injury.” I do not believe that either of these elements of torture are present in this case. Because my colleagues and I have such different views of the type of proof required for a torture conviction under Penal Code section 206, this case may warrant review by our Supreme Court.
On May 20, 1999, and May 25, 1999, the opinion was modified to read as printed above. Appellants’ petitions for review by the Supreme Court were denied August 11, 1999.
Because Hyon was blindfolded, he could not identify who among appellants’ group actually assaulted him.
It is worth noting that the first jury to hear the evidence against appellant Jung, and which convicted him of mayhem and kidnapping, could not reach a verdict on the torture count. Moreover, the trial court, after hearing the evidence presented against appellant Jung on the torture count, was inclined to dismiss that count pursuant to Penal Code section 1385, but denied the motion to dismiss since Jung’s retrial could simply be consolidated with appellant Nguyen’s trial on the same count.