Opinion
F060258 Super. Ct. No. F09900507
08-05-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO GARCIA, Defendant and Appellant.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Kane, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted appellant, Antonio Garcia, of aggravated mayhem (Pen. Code, § 205), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and street terrorism (§ 186.22, subd. (a)) for the beating of another gang member in the Fresno County Jail. The jury also found true the allegations that the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Garcia argues that there was insufficient evidence to convict him of aggravated mayhem. We disagree and affirm.
All further statutory references are to the Penal Code.
FACTS
Garcia and the victim, Gerardo Gomez, were housed in "Pod D," a special unit within the Fresno County Jail. Pod D is a segregated unit that consists entirely of Norteño gang members. The Norteño gang is affiliated with the Nuestra Familia (NF), a prison gang that oversees other Northerner Hispanic criminal street gangs. NF is structured under a constitution and code of rules, which members are required to abide by. Below the NF are the Norteño, who have their own set of rules called the 14 bonds. If a Norteño member is accused of breaking one of those bonds, they are given due process that allows the accused to defend themselves against the accusations. Gomez was designated by the Norteño gang as an "O.A.," which stands for overall, meaning he was the "supervisor" of the other gang members in the unit. There were two overalls in Pod D at the time of the incident, and each were considered to be of equal rank.
At trial, Gomez testified that on November 13, 2008, he was asked to go into a cell to smoke a cigarette with other gang members. While smoking, Garcia entered the cell and slammed Gomez to the ground, and the other gang members attempted to "remove" him. Removal is a two-phase process whereby a gang member that is no longer in good standing with the gang is "removed" from the gang's segregated unit.
Prior to removal, the Norteño rules require the accused be given due process, which involves a "judge" who weighs the evidence, and determines the guilt and punishment of the accused. The Norteño gang is structured in a way that prohibits removal without an order from a high-ranking gang member. The first phase of the removal process involves "stickers," who are trained to stab the victim in their vital organs. The second phase consists of "bombers," who beat the victim to ensure his death, as well as to give the stickers time to clean up and dispose of their weapons. Lookouts are also positioned outside of the place where the attack is to occur.
A Norteño gang member involved in the attack, as well as a police officer who is considered a gang expert, testified that gang members are also trained to carve "bitch" or "puto" marks into the victim's face, to let others know that the victim is no longer in good standing within the gang.
During Gomez's removal, he was stabbed multiple times throughout his body, but the attackers missed his vital organs. The attack on Gomez resulted in his left eye being swollen shut, multiple stab wounds, and a piece of "meat" hanging from his cheek. A local hospital's medical staff closed some of his wounds with staples and stitches. Gomez suffered permanent scars down his leg, thigh, forehead, and below his left eye. Further, Gomez testified that after the attack occurred, he lost sensation in an area of his face below his left eye.
Other gang members, who had already pled guilty to attempted murder for the same incident, testified that Garcia was not in the cell at the time of the attack. One of the gang members testified that the attack on Gomez was not a removal, but instead related to a personal dispute. Conversely, another gang member testified that he had received a "huila" prior to the attack that invited him to participate in a removal. He further testified that he was responsible for overseeing the lookouts during the attack, and he saw Garcia enter the cell after Gomez.
A "huila" is a written form of communication that the gang uses to pass messages between members.
Garcia was convicted by a jury of aggravated mayhem, assault by means likely to produce great bodily injury, and street terrorism. The gang enhancement was found true as to all counts.
DISCUSSION
Garcia argues there is insufficient evidence to support his conviction for aggravated mayhem. Specifically, Garcia asserts he did not have the specific intent to permanently disfigure Gomez, and further, that there is insufficient evidence of a permanent disfigurement.
Garcia does not challenge his convictions for assault by means of force likely to produce great bodily injury and street terrorism, or the gang enhancement.
In reviewing a claim of insufficiency of the evidence, the appellate court reviews the record to determine whether it contains substantial evidence to support the finding that the defendant was guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) "Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.) The substantial evidence test requires the appellate court to view the evidence in a light most favorable to the judgment below. (People v. Rich (1988) 45 Cal.3d 1036, 1081-1082.) "It is the exclusive province of the trier of fact to assess the credibility of the witnesses, resolve conflicts in the testimony and weigh the evidence." (People v. Vasco (2005) 131 Cal.App.4th 137, 161.) "'The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.'" (People v. Story (2009) 45 Cal.4th 1282, 1296.)
Section 205 states, in pertinent part: "A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body." Aggravated mayhem is a specific intent crime which requires proof that the defendant intended to cause the permanent injury. (People v. Park (2003) 112 Cal.App.4th 61, 64.) "Evidence that shows no more than an 'indiscriminate attack' is insufficient to prove the required specific intent." (Ibid.) Finally, the "specific intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately." (Ibid.)
Garcia argues that his crime does not constitute aggravated mayhem because the assault was an "explosion of violence" that was intended to kill Gomez. We disagree.
There is ample evidence in the instant case to support the jury's inference that the attackers intended to specifically maim rather than attack indiscriminately. First, the victim, a former Norteño member who had participated in removals, testified the assault was a removal gone wrong. Another gang member involved in the attack stated he received a "huila" that invited him to participate in a removal that evening. It can be inferred from the testimony of the gang members that there are two separate intents when removing a member: murder and carving "bitch marks." These marks were intended to be a scarlet letter telling others that the person was no longer in good standing with the gang, thereby implying permanence. Given the extensive testimony, the facts and circumstances support an inference that the attackers intended to maim. Thus, there was sufficient evidence for a reasonable jury to conclude that the attack was intended to permanently disfigure the victim.
We also reject the claim that the victim did not sustain a permanent disabling or disfiguring injury as provided by the statute.
The word "disfigure" is defined as: "to make less complete, perfect, or beautiful in appearance or character." (Webster's 3d New Internat. Dict. (1986) p. 649.) To prove mayhem based on a disfiguring injury, the injury must be permanent, but not necessarily apparent, or visible to the naked eye. (See People v. Hill (1994) 23 Cal.App.4th 1566, 1571.) "[T]he possibility that a victim's disfigurement might be alleviated through reconstructive surgery is no bar to a finding of 'permanent' injury." (People v. Williams (1996) 46 Cal.App.4th 1767, 1774.) In People v. Keenan (1991) 227 Cal.App.3d 26, 35-36), the First District Court of Appeal held that cigarette burns on an unexposed portion of the victim's body, still visible three and one-half months after the attack, constituted a permanent disfigurement. The court explained, "if the burns had been inflicted on [the victim's] face there would be no question that mayhem had been committed." (Id. at p. 36.) Further, three- to five-inch facial scars apparent at the time of trial have been held to constitute mayhem. (People v. Newble (1981) 120 Cal.App.3d 444, 453; Goodman v. Superior Court (1978) 84 Cal.App.3d 621, 623.)
In the instant case, the victim's injuries included a scar and permanent numbness below his left eye. The jury was familiar with what happened to the victim during the attack; they were shown "before and after" pictures of the victim, and saw his injuries firsthand when he testified at trial. As the jury is the finder of fact, it is their job to weigh the credibility of witnesses and draw reasonable inferences from the evidence. (See People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463.) There was ample evidence from which a reasonable trier of fact could have found that the victim suffered a permanent disfigurement. Accordingly, there was sufficient evidence to support a conviction for aggravated mayhem.
DISPOSITION
Judgment is affirmed.