People v. Elshere

1

THE PEOPLE, Plaintiff and Respondent, v. GARRETT LARS ELSHERE, Defendant and Appellant.

A167411

California Court of Appeals, First District, Second Division

June 25, 2024

NOT TO BE PUBLISHED

Napa County Super. Ct. No. 21CR001947

DESAUTELS, J.

A jury convicted Garrett Lars Elshere of attempted murder aggravated mayhem, and assault with a deadly weapon based on evidence that he stabbed his friend over 16 times and left him for dead. Elshere asserts insufficient evidence supports the aggravated mayhem conviction. He further claims the trial court abused its discretion by denying his motion for a new trial and declining to strike certain enhancements. We affirm the judgment but remand for the limited purpose of resentencing.

BACKGROUND^[1]

Evidence at Trial

In 2018, Elshere and Leobardo Santos-Lora met while staying in a homeless shelter. Despite a language barrier-Elshere only spoke English and Santos-Lora only spoke Spanish-the two became good friends. Both men described their friendship as close and free from quarrels/discord.

In May 2021, a cousin offered to bring Santos-Lora a pound of methamphetamine from Mexico to sell in California so that he "could get some money since [Santos-Lora] was disabled and could not work." Santos-Lora had not sold drugs before. Santos-Lora denied being Elshere's drug dealer but admitted he once gave Elshere some drugs as a gift.

In June 2021, soon after receiving the drugs, Santos-Lora met with a person named Daniel, whose nickname was "Chango." Chango had agreed to buy the pound of methamphetamine for $2,000. At the exchange, Chango only had $700; Santos-Lora was afraid of keeping the drugs, so he gave Chango the methamphetamine for $700 with the understanding that Chango would pay the difference later. Subsequently, Santos-Lora learned that Elshere also knew Chango.

Between July and August 2021, Santos-Lora texted Chango repeatedly to get the rest of the money. "He gave me a hundred here and there." Another time, Chango gave Santos-Lora $300. In total, Chango paid Santos-Lora $1,300, "and he kept telling me to wait." Santos-Lora's messages became more forceful; he told Chango he would "send someone" if Chango did not pay up. In one message Santos-Lora told Chango that "they gave me the green light to fuck you up." In another, Santos-Lora texted "look you son [of] a bitch, I'm giving you two hours to pay. You are not going to keep me around like a dumb ass. You think you are all that. I too have balls and I told you not to get me upset." Santos-Lora explained he only sent the messages to pressure Chango and that no one had actually authorized him to harm Chango. Santos-Lora was not connected to a Mexican cartel and did not have friends who would beat people up.

On the morning of August 27, 2021, Elshere called Santos-Lora asking him to meet in a parking lot next to a school. Santos-Lora had never met Elshere there before. Santos-Lora had just moved out of his girlfriend's house, so he had all of his belongings in his car, including a gun he had bought for protection because "there were people that were following me." Santos-Lora trusted Elshere and considered him "a good friend, so I never thought he would hurt me that day."

When Elshere arrived, he got into the front passenger seat of Santos-Lora's car. Santos-Lora was seated in the driver's seat with the window open. After exchanging pleasantries, Santos-Lora expressed frustration about Chango still owing him money. Elshere said, "fuck, Chango," and "let's go, let's go." Elshere "was all worked up" and "hyper." Confused, Santos-Lora asked in English, "[W]hat happened, do you need a ride?"

Elshere got out of the car, "ran to the other side," grabbed Santos-Lora through the open driver's side window "by the shirt," and started attacking him with a 10-inch knife "out of the blue." Fearing he might get stabbed in the heart, Santos-Lora tried to block the knife with his hands, resulting in lacerations to his hands and fingers. The knife cut a tendon in Santos-Lora's right hand, which permanently impaired his mobility in certain fingers.

To avoid the ongoing stabbing, Santos-Lora then "threw [himself] down." Santos-Lora pulled himself "towards the passenger side of the vehicle," but Elshere kept "poking and cutting me all over my legs." At one point, as he was on his back in the passenger seat kicking his legs towards Elshere, Santos-Lora's "right leg got stuck between the steering wheel and the door," allowing Elshere to stab him in the leg, almost completely severing the femoral artery.

When Elshere was stabbing Santos-Lora's legs, Santos-Lora tried to pick up the gun he had concealed in the waistband of his pants, but he could not because he had no movement in his hand; the gun "fell down." Elshere "took a step back" when he saw the gun but resumed the attack when the gun fell out of Santos-Lora's hand. Santos-Lora did not know why Elshere stabbed him. Elshere stopped stabbing Santos-Lora when a young man arrived and started yelling.

Responding officers found Santos-Lora in his car, covered in a "massive amount of blood." They located a semiautomatic handgun, "dripping in blood," near Santos-Lora's buttocks. Responding officers also discovered a significant amount of methamphetamine and a digital scale in Santos-Lora's car.

Elshere testified that after he sat in the passenger seat of Santos-Lora's car, he gave Santos-Lora two 20 dollar bills for methamphetamine. Santos-Lora did not give Elshere methamphetamine but kept talking about Chango owing him money. Elshere got out of the car because "he kind of pissed me off a little bit. He took my money, and I was like 'what's up', you know what I mean?"

Elshere testified he did not try to stab Santos-Lora until Santos-Lora pulled a gun on him, "[a]nd I was aiming for his hand." Elshere stabbed twice at Santos-Lora's hand that was holding the gun. "The knife was everywhere.... It wasn't like I was trying to stab him certain places or-the only-the first one was to like the hand area. His right hand, I think." After the gun fell out of Santos-Lara's hand, it fell where the middle console is, but Elshere continued to stab Santos-Lora in the legs because he was moving around. Elshere did not recall stabbing Santos-Lora 16 times but testified, "I know there was like two, three times in his legs. They were like purposeful." Elshere admitted he stabbed Santos-Lora in the legs so that he would be unable to chase after him. At some point, the knife got knocked out of Elshere's hand, and he ran away. Elshere denied stabbing Santos-Lora for $40.

Responding officers did not recover the $40 or the sheath Elshere testified he used to carry the knife.

Santos-Lora received over 16 stab wounds, with at least eight to his legs. The medical records represent that Santos-Lora suffered wounds to all four extremities; 16 of which required repair in the form of staples or sutures. When he arrived at the hospital, Santos-Lora needed emergency surgery. He was bleeding heavily from the wound in his right inner thigh, in which the femoral vein-"a large vein that brings blood back to the heart from the extremity"-was almost entirely severed. Had first responders not applied a tourniquet to the thigh above the wound, it is likely Santos-Lora would have died.

Verdict and Sentencing

The jury found Elshere not guilty of attempted murder but guilty of attempted voluntary manslaughter (Pen. Code,^[2] §§ 192, 664; count 1), aggravated mayhem (§ 205; count 2), and assault with a deadly weapon (§ 245, subd. (a)(1); count 3). The jury found Elshere personally used a deadly weapon (§ 12022, subd. (b)) in committing counts 1 and 2, and personally inflicted great bodily injury (§ 12022.7, subd. (a)) in committing counts 1 and 3. The court found true various enhancements and aggravating sentencing factors at the subsequent bifurcated court trial.

After denying Elshere's new trial and Romero^[3] motions, the court sentenced him to a total of 22 years to life in prison.

DISCUSSION

I. Substantial Evidence Supports the Aggravated Mayhem Conviction

Elshere contends his conviction for aggravated mayhem (§ 205; count 2) is unsupported by substantial evidence. We disagree.

A conviction for aggravated mayhem "requires proof the defendant specifically intended to maim-to cause a permanent disability or disfigurement." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831 (Szadziewicz), disapproved on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214.) Section 205's requirement of "permanent disability or disfigurement" for a finding of aggravated mayhem is the same as for simple mayhem under section 203. (See People v. Newby (2008) 167 Cal.App.4th 1341, 1347-1348, citing People v. Hill (1994) 23 Cal.App.4th 1566, 1575 ["an injury may be considered legally permanent for purposes of mayhem despite the fact that cosmetic repair may be medically feasible"].) The difference between simple and aggravated mayhem, therefore, is determined by the assailant's intent. (See, e.g., People v. Manibusan (2013) 58 Cal.4th 40, 8889 (Manibusan) [holding that the same evidence demonstrating an intent to kill-firing two shots to the face and upper arm of the victim-can support an inference of intent to cause the permanent disability or disfigurement of aggravated mayhem].)

A jury may not find a specific intent to maim based only on evidence that the victim actually suffered a permanent injury;"' instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately.'" (Szadziewicz, supra, 161 Cal.App.4th at p 831.) The jury may infer a specific intent to maim from factors including" 'the circumstances attending the act, the manner in which...