People v. Romero ( 2020 )


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  • Filed 12/23/19 Certified for Publication 1/16/20 (order attached)
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,                                              B293965
    Plaintiff and Respondent,                         (Los Angeles County
    Super. Ct. No. BA459012)
    v.
    MIGUEL ROMERO,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of
    Los Angeles County. Leslie A. Swain, Judge. Affirmed with
    directions.
    Michael C. Sampson, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Xavier Becerra, Attorney General, Lance E. Winters,
    Assistant Attorney General, Kenneth C. Byrne and Gregory B.
    Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
    _________________________
    In an information filed May 21, 2018, the Los Angeles
    County District Attorney’s Office charged defendant and
    appellant Miguel Romero with attempted murder (Pen. Code,
    §§ 664/187, subd. (a); count 1),1 aggravated mayhem (§ 205;
    count 2), and assault by means of force likely to cause great
    bodily injury (§ 245, subd. (a)(4); count 3). It was also alleged
    that defendant committed the offenses for the benefit of, at the
    direction of, or in association with a criminal street gang
    (§ 186.22, subd. (b)(1); the gang enhancement) and that he
    personally inflicted great bodily injury (§ 12022.7, subd. (a); the
    GBI enhancement).2 It was further alleged that defendant
    previously committed a prior strike (§§ 667, subd. (d), 1170.12,
    subd. (b).) The alleged prior was a 2009 juvenile adjudication for
    robbery.
    A jury convicted defendant of counts 2 and 3, also finding
    the gang enhancement true as to each count and the GBI
    enhancement true as to count 3.3 The jury acquitted defendant of
    count 1.4 The trial court later reduced the aggravated mayhem
    1     All further statutory references are to the Penal Code
    unless otherwise indicated.
    2      Codefendants Sammy Chavez (Chavez), Heriberto Gonzalez
    (Gonzalez), and Felipe Torres (Torres) were also charged with the
    same offenses and allegations, with Torres additionally accused
    in all three counts with personal use of a deadly or dangerous
    weapon enhancement (§ 12022, subd. (b)(1)).
    3     The appellate record indicates that the jury did not make a
    finding on the GBI enhancement in count 2.
    4    Torres and defendant were tried together and received the
    same verdict.
    2
    conviction in count 2 to mayhem (§ 203). In a bifurcated
    proceeding, the trial court found the prior strike allegation to be
    true.
    Defendant was sentenced to state prison for a term of
    18 years, as follows: the midterm of four years on the mayhem
    conviction, doubled as a result of the prior strike. The trial court
    also imposed a consecutive 10-year sentence for the gang
    enhancement. While the trial court sentenced defendant to a
    three-year term, plus 10 years for the gang enhancement, on
    count 3, it did not impose punishment for the GBI enhancement.
    The sentence on count 3 was stayed pursuant to section 654.
    Defendant timely filed a notice of appeal. He contends that
    (1) his conviction for mayhem must be reversed because it is not
    supported by sufficient evidence; (2) the abstract of judgment
    must be corrected to reflect his conviction of mayhem, not
    aggravated mayhem; and (3) the trial court’s use of defendant’s
    prior juvenile adjudication to increase his sentence beyond the
    statutory minimum violated his constitutional rights. The People
    ask that we remand the matter for resentencing on count 3
    because the trial court did not impose punishment on the GBI
    enhancement found true by the jury.
    We agree with defendant that the abstract of judgment
    must be corrected to accurately reflect his conviction of simple
    mayhem. We also agree with the People that the matter must be
    remanded for resentencing on the GBI enhancement as to
    count 3. In all other respects, we affirm.
    BACKGROUND
    The People’s Evidence
    A. The victim is stabbed by defendant
    Ryan Ramirez (Ramirez) and his girlfriend, Jenny Burela
    (Burela), were walking towards the entrance of a Food 4 Less
    grocery store in Boyle Heights on July 2, 2017. At the same time,
    3
    surveillance footage depicted defendant, Torres, Chavez,
    Gonzalez, and an unidentified fifth man leaving the store. When
    the group crossed paths with Ramirez and Burela in the parking
    lot, they attacked Ramirez. Ramirez was stabbed eight times.
    Burela drove Ramirez to the hospital, but was soon pulled
    over by police for speeding. Los Angeles Police Department
    Officer Daniel Guevara saw Ramirez bleeding in the passenger
    seat and called an ambulance. Both Ramirez and Burela
    reported to the officer that Ramirez had been stabbed. Burela
    said that the attackers yelled “‘White Fence’” several times as
    they left.
    The Food 4 Less was in disputed gang territory. Officer
    Guevara believed that defendant was a member of the White
    Fence criminal street gang, along with Torres, Chavez, and
    Gonzalez. Ramirez was an active member of the Boyle Heights
    13 criminal street gang.5 Officer Guevara opined that a
    hypothetical scenario consisting of the facts of the attack on
    Ramirez constituted a crime committed for the benefit of the
    White Fence criminal street gang.
    Ramirez testified that he was attacked by “black guys.” He
    said that he had three or four stab wounds that looked like
    “scrape marks.” He stated that the wounds at the time of trial 10
    months later had healed to the point that “everything is good,
    back to normal like nothing had happened,” and that no scars
    resulted from being stabbed. He refused to remove his shirt
    while testifying to show that he did not have any scarring. He
    acknowledged that he told the prosecutor in a pretrial interview
    that he was worried people would kill him if he testified and that
    he had to ask permission from an “older homie” to allow the
    prosecutor to take photographs of any injuries underneath his
    5     Ramirez denied being a member of the Boyle Heights 13.
    4
    shirt. He confirmed that his desire to seek permission
    represented the type of respect a younger gang member has for
    the older members of the gang, and how a gang member is not
    supposed to cooperate with law enforcement unless he receives
    permission from a high-ranking member.
    Officer Guevara testified that a common rule between gang
    members is not to testify against other gang members in court.
    Should a gang member do so, he would be subject to retaliation,
    including murder attempts, even from members of his own gang.
    B. Ramirez’s injuries
    Ramirez arrived at the hospital about 15 minutes after he
    was stabbed. He had been stabbed eight times. His blood
    pressure was falling, and he received an immediate blood
    transfusion. The wounds included a one centimeter laceration on
    his right chest; two lacerations to his abdomen, one of which was
    three centimeters; one 2-centimeter laceration on his right knee;
    one 2-centimeter laceration to his left armpit; one laceration on
    his right hip; and two 2-centimeter lacerations to the left side of
    his glute. The stab wounds were closed with either surgical
    staples or sutures.
    An emergency CT scan revealed that Ramirez had some air
    around his right lung. That condition, which prevents the lung
    from inflating, is called pneumothorax, colloquially known as a
    collapsed lung. The pocket of air was not large enough to require
    immediate intervention, however, an X-ray taken about 12 hours
    later showed “much more air around the right lung” and that the
    right lung was “only partially inflated.” As Ramirez’s collapsed
    lung had gotten worse, it required an emergency procedure. Left
    untreated, the condition is life-threatening, both because the
    afflicted lung cannot fully expand and also because it can start to
    push on the other lung and then the heart. In either scenario, it
    is “possible” that the patient could die.
    5
    In order to fix Ramirez’s collapsed lung, doctors placed an
    open tube with suction attached inside his chest, between the
    lung and the layer surrounding the outside of the lung. Air left
    through the tube and kept Ramirez’s lung inflated. The tube
    remained in Ramirez’s chest for three days.
    Ramirez also had a hematoma, a swelling of pooled blood,
    near his rectum. In addition, he suffered a fracture in the bottom
    of his breast bone in his chest.
    Defense Evidence
    The defense rested without presenting any evidence.
    DISCUSSION
    I. Sufficient evidence supports defendant’s conviction for mayhem
    Defendant contends that his conviction for mayhem should
    be reversed because there was insufficient evidence that Ramirez
    suffered permanent disfigurement or a disability that was more
    than slight or temporary.
    A. Relevant law
    The prosecution has the burden of proving element of the
    charged count. (People v. Cuevas (1995) 
    12 Cal. 4th 252
    , 260.) “To
    determine whether the prosecution has introduced sufficient
    evidence to meet this burden, courts apply the ‘substantial
    evidence’ test. Under this standard, the court ‘must review the
    whole record in the light most favorable to the judgment below to
    determine whether it discloses substantial evidence—that is,
    evidence which is reasonable, credible, and of solid value—such
    that a reasonable trier of fact could find the defendant guilty
    beyond a reasonable doubt.’ [Citations.]” (Id. at pp. 260–261.)
    The uncorroborated testimony of a single witness is sufficient to
    sustain a conviction unless the testimony is physically impossible
    or inherently improbable. (People v. Panah (2005) 
    35 Cal. 4th 395
    , 489.) “Reversal . . . is unwarranted unless it appears ‘that
    upon no hypothesis whatever is there sufficient substantial
    6
    evidence to support [the conviction].’” (People v. Bolin (1998) 
    18 Cal. 4th 297
    , 331.)
    “Every person who unlawfully and maliciously deprives a
    human being of a member of his body, or disables, disfigures, or
    renders it useless, or cuts or disables the tongue, or puts out an
    eye, or slits the nose, ear, or lip, is guilty of mayhem.” (§ 203;
    People v. Santana (2013) 
    56 Cal. 4th 999
    , 1003 (Santana).) The
    modern rationale behind the offense of mayhem in California is
    “‘“the preservation of the natural completeness and normal
    appearance of the human face and body.”’” (Id. at p. 1004.) A
    member of the body is a general term describing any integral part
    or vital organ of the body. (People v. Robinson (2014) 
    232 Cal. App. 4th 69
    , 76.)
    Disfigurement of the body “‘impairs or injures the beauty,
    symmetry or appearance of a person or thing . . . [or] renders
    unsightly, misshapen or imperfect or deforms in some manner.’”
    (People v. Page (1980) 
    104 Cal. App. 3d 569
    , 577.) To prove
    mayhem based on a disfiguring injury, the injury must be
    permanent. 
    (Santana, supra
    , 56 Cal.4th at p. 1007; see also
    People v. Newble (1981) 
    120 Cal. App. 3d 444
    , 447 [if an injury is
    likely to leave a permanent scar, it constitutes disfigurement].)
    Permanent scarring constitutes a disfiguring injury. (People v.
    
    Page, supra
    , at p. 578.) An injury within the meaning of mayhem
    is still considered permanent if modern technology effectively
    repairs the injury. (People v. Hill (1994) 
    23 Cal. App. 4th 1566
    ,
    1574.) Accordingly, “the possibility of medical alleviation [does]
    not . . . diminish one’s culpability for infliction of an injury that
    would otherwise constitute mayhem.” (Id. at p. 1572.)
    B. Analysis
    Applying these legal principles, we conclude that Ramirez’s
    scarring from the stabbing attack constitutes sufficient evidence
    to support defendant’s conviction of mayhem.
    7
    Ramirez was stabbed eight times, resulting in one and
    three centimeter lacerations over his body. The lacerations were
    closed either by surgical staples or sutures. While there was no
    direct evidence that Ramirez had scars on his body, the trial
    court could infer from the evidence presented that Ramirez’s
    wounds resulted in scars. And scars satisfy the disfigurement in
    mayhem. (People v. Johnson (2018) 21 Cal.App.5th 267, 281.)
    Notably, Ramirez was purposefully evasive about his scars.
    He testified that he did not have any scars, and he refused to
    raise his shirt to prove that he was not injured. From the
    testimony presented about gang culture, it was reasonable for the
    trial court to infer that Ramirez wanted to avoid the
    consequences of testifying, not that he did not suffer any scars
    from the stabbing. (People v. Wright (2016) 4 Cal.App.5th 537,
    546; People v. Brown (2014) 
    59 Cal. 4th 86
    , 106 [resolution of
    conflicts and inconsistencies in testimony is in the exclusive
    province of the trier of fact].)
    II. The abstract of judgment must be corrected to reflect a
    conviction for mayhem
    Defendant contends that the abstract of judgment must be
    corrected because it incorrectly identifies his conviction in count 2
    as “aggravated mayhem” as opposed to simply “mayhem.” The
    People agree.
    We agree with the parties. The trial court reduced
    defendant’s conviction from aggravated mayhem (§ 205) to
    mayhem (§ 203) in count 2, and the abstract of judgment must be
    corrected to accurately reflect defendant’s conviction. (People v.
    Mitchell (2001) 
    26 Cal. 4th 181
    , 185 [court may correct clerical
    errors in the abstract of judgment at any time].)
    8
    III. The trial court did not infringe on defendant’s constitutional
    rights by finding that his prior juvenile adjudication constituted a
    strike
    Defendant contends that his Sixth and Fourteenth
    Amendment rights were violated when the trial court used his
    prior juvenile robbery adjudication as a strike to increase his
    current sentence, asserting that a juvenile adjudication can never
    be used to increase a sentence because a juvenile does not have
    the right to a jury.
    Defendant’s argument is premised on “[a] series of United
    States Supreme Court decisions, beginning with Apprendi v.
    New Jersey (2000) 
    530 U.S. 466
    (Apprendi), establish[ing] an
    adult criminal defendant’s general right, under the Fifth, Sixth,
    and Fourteenth Amendments, to a jury finding beyond a
    reasonable doubt of any fact used to increase the sentence for a
    felony conviction beyond the maximum term permitted by
    conviction of the charged offense alone.” (People v. Nguyen (2009)
    
    46 Cal. 4th 1007
    , 1010 (Nguyen).) Apprendi held that “[o]ther
    than the fact of a prior conviction, any fact that increases the
    penalty for a crime beyond the prescribed statutory maximum
    must be submitted to a jury, and proved beyond a reasonable
    doubt.” 
    (Apprendi, supra
    , at p. 490, italics added.)
    As defendant acknowledges, in Nguyen, our Supreme Court
    considered and rejected the contention that Apprendi and its
    progeny bar a court from using a California juvenile adjudication
    as a prior strike to enhance a defendant’s sentence under the
    “Three Strikes” law. 
    (Nguyen, supra
    , 46 Cal.4th at p. 1028 [“the
    absence of a constitutional or statutory right to jury trial under
    the juvenile law does not, under Apprendi, preclude the use of a
    prior juvenile adjudication of criminal misconduct to enhance the
    maximum sentence for a subsequent adult felony offense by the
    same person”].) However, relying on recent opinions in Descamps
    9
    v. United States (2013) 
    570 U.S. 254
    (Descamps), Mathis v.
    United States (2016) 579 U.S. ___ [
    136 S. Ct. 2243
    , 
    195 L. Ed. 2d 604
    ] (Mathis), and People v. Gallardo (2017) 4 Cal.5th 120
    (Gallardo), defendant contends Nguyen is no longer controlling
    precedent because those cases recognized an expanded or broader
    right to a jury trial on facts that can increase a defendant’s
    sentence.
    We reject defendant’s argument. As an initial matter, we
    note that in 2016, after Descamps and Mathis were decided, our
    Supreme Court expressly declined to reconsider its holding in
    Nguyen that “juvenile adjudications [are] inadmissible as prior
    convictions under Apprendi . . . and its progeny.” (People v.
    Landry (2016) 2 Cal.5th 52, 117, fn. 18.) In addition, Descamps
    and Mathis do nothing to undermine the premise of our Supreme
    Court’s holding in Nguyen because they did not concern the
    possibility of using the fact that a defendant incurred a juvenile
    adjudication to enhance a defendant’s sentence for a subsequent
    crime. Instead, those cases strictly prohibited factfinding by the
    sentencing court beyond the fact of a prior conviction.
    Specifically, Descamps and Mathis interpreted the federal Armed
    Career Criminal Act (ACCA) (18 U.S.C. § 924(e)) and applied
    Apprendi’s Sixth Amendment limits on judicial factfinding to
    determine the extent to which a sentencing court could make
    findings to determine if a prior conviction qualified as a predicate
    offense to enhance a subsequent sentence under the ACCA.
    
    (Descamps, supra
    , 570 U.S. at p. 257; 
    Mathis, supra
    , 136 S.Ct. at
    p. 2248.) In both cases, the Supreme Court concluded that the
    sentencing courts were generally barred from looking beyond the
    statutory elements of the prior offenses to determine whether the
    defendant’s conduct qualified for imposition of a sentence
    enhancement under the ACCA. (See Descamps, at pp. 259, 268–
    269 [sentencing court impermissibly relied on record of a plea
    10
    colloquy in finding that the defendant’s prior conviction for
    burglary involved unlawful entry]; Mathis, at p. 2250 [sentencing
    court impermissibly relied on records of a prior conviction to
    determine that the defendant had burglarized structures, rather
    than vehicles].) In Gallardo, our Supreme Court reevaluated its
    prior precedent in People v. McGee (2006) 
    38 Cal. 4th 682
    , in light
    of Descamps and Mathis, holding that it was no longer
    permissible for “trial courts to make findings about the conduct
    that ‘realistically’ gave rise to a defendant’s prior conviction. The
    trial court’s role is limited to determining the facts that were
    necessarily found in the course of entering the [prior] conviction.”
    
    (Gallardo, supra
    , 4 Cal.5th at p. 134.) However, Gallardo did not
    concern whether it is permissible to use a juvenile adjudication as
    a prior strike.
    Thus, although Gallardo, Mathis, and Descamps all
    disapprove judicial factfinding by a sentencing court to determine
    whether the defendant suffered a qualifying prior conviction
    when that issue is unclear from the fact of the conviction itself,
    none of those cases calls into question Nguyen’s holding that a
    sentencing court may impose a sentence enhancement based on a
    prior juvenile adjudication, despite the lack of right to a jury trial
    in that proceeding. As Nguyen remains good law, we are bound
    to follow it and to reject defendant’s argument that the use of his
    prior juvenile adjudication as a prior strike violated his
    constitutional rights. (Auto Equity Sales, Inc. v. Superior Court
    (1962) 
    57 Cal. 2d 450
    , 455.)
    IV. Remand is necessary for the trial court to impose a sentence
    on the count 3 GBI enhancement
    The jury found a GBI enhancement as to count 3 true, but
    the sentence imposed did not include any term for that
    enhancement. Instead, the trial court sentenced defendant to a
    three-year term on the underlying offense and an additional 10-
    11
    year term on the gang enhancement; the trial court then stayed
    the count 3 sentence pursuant to section 654. The People assert
    that remand is required for the trial court to impose a sentence
    on the GBI enhancement, even though the sentence is stayed.
    Defendant does not respond to this argument in his reply brief.
    We agree with the People. Remand is necessary because a
    trial court is required to impose punishment on every count and
    allegation, even when it stays the sentence under section 654.
    (People v. Alford (2010) 
    180 Cal. App. 4th 1463
    , 1469.) The GBI
    enhancement carries a mandatory three-year sentence
    (§ 12022.7, subd. (a)), but a trial court also has the discretion to
    strike the enhancement pursuant to section 1385 (People v.
    Meloney (2003) 
    30 Cal. 4th 1145
    , 1155).
    Upon remand, the trial court must impose a sentence on or
    strike the GBI enhancement.
    DISPOSITION
    The trial court is instructed to correct the abstract of
    judgment to reflect a conviction for mayhem (as opposed to
    aggravated mayhem) in count 2. The trial court is also directed
    to impose a sentence on or strike the GBI enhancement. In all
    other respects, the judgment is affirmed.
    _______________________, J.
    ASHMANN-GERST
    We concur:
    ________________________, P. J.        ________________________, J.
    LUI                                    CHAVEZ
    12
    Filed 1/16/20
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,                                B293965
    Plaintiff and Respondent,           (Los Angeles County
    Super. Ct. No. BA459012)
    v.
    ORDER CERTIFYING
    MIGUEL ROMERO,                             OPINION FOR PUBLICATION
    Defendant and Appellant.
    THE COURT:*
    The opinion in the above-entitled matter filed on
    December 23, 2019, was not certified for publication in the
    Official Reports.
    For good cause it now appears that the opinion should be
    published in the Official Reports and it is so ordered.
    *
    LUI, P. J.        ASHMANN-GERST, J.             CHAVEZ, J.