Filed 4/15/14 P. v. Romero CA1/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A137356
v.
JOSE PABLO ROMERO,                                                       (Sonoma County
                                                                         Super. Ct. No. FCR287013)
         Defendant and Appellant.


         Defendant Jose Romero appeals from a judgment convicting him of a single count
of aggravated mayhem. He contends there was insufficient evidence of specific intent to
support the conviction, that there was also insufficient evidence to support the finding
that he was 16 years of age when he committed an offense used as a “strike” to double his
sentence and that the use of a prior juvenile adjudication as a “strike” violated his rights
under the United States Constitution, and finally that the trial court erroneously imposed
two life terms under California’s Three Strikes law. We conclude that only his final
contention has merit, requiring a modification of the sentence. We shall otherwise
affirm the judgment.

                                   Factual and Procedural Background

         Defendant was charged with a single count of aggravated mayhem in violation of
Penal Code section 205.1 The following evidence was presented at trial:



1
    All statutory references are to the Penal Code.


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        Defendant met Angela Hall in December 2010. At that time Hall was 19 years of
age and defendant was 34. They secretly married in January 2011. In April 2011
defendant told Hall that he had a daughter with his ex-girlfriend, Olga Robles, and that he
and Robles were battling for custody of their daughter. Defendant and Hall then agreed
to a scheme to fabricate evidence of an assault by Robles against Hall that would cause
Robles to be deported and permit defendant to obtain custody of defendant’s daughter.
        Between April and August 2011, four incidents of purported attacks by Robles
against Hall were falsely reported to the Novato Police Department, but none led to the
prosecution of charges against Robles. Defendant then told Hall that it was necessary to
inflict a more severe injury on her body that the authorities would believe she could not
self-inflict.
        On August 11, 2011, defendant and Hall picked up another man and the three
drove to a spot in Fairfield near the Department of Motor Vehicles (DMV) office.
Defendant told Hall that an “X” would be cut on her back and instructed her to tell police
that she was attacked by two men who told her to leave Robles alone. Hall decided she
did not wish to continue with the contrived assault and walked away from the two men.
However, the men chased and caught her, then punched and kicked her to the ground.
Hall testified that she next felt defendant cut her back. A witness whose van was parked
near the DMV office testified that he saw the two men run from the scene and heard one
of them say, “Let’s get out of here.” Hall called 911and told the dispatcher that two men
had attacked her.
        Officer Paul Augusto arrived at the scene and described the injury to Hall’s back
as “one of the most horrific injures” he had ever seen. There were two deep cuts on her
back that formed a “V” from her shoulders to her waist. She was rushed to the hospital
for emergency surgery. Close to 100 staples were used to close the wounds on her back.
At the time of trial, approximately nine months later, she was still experiencing pain and
discomfort in her back. Although Hall initially claimed falsely that Robles had ordered
the attack, she ultimately acknowledged that the attack was part of the scheme with
defendant to cause Robles to be deported.


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       In a bifurcated trial, the jury first convicted defendant of aggravated mayhem. In
the second phase of the trial, the jury found true a 1993 juvenile adjudication of robbery
with a firearm. Treating the juvenile adjudication as a prior strike under the Three Strikes
law (§§ 667, subds. (b)-(i), 1170.12, subd. (a)), the court sentenced defendant to two life
terms with the possibility of parole. Defendant filed a timely notice of appeal.

                                         Discussion

1. Substantial evidence supports the conviction for aggravated mayhem.

       Section 205 provides that “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 requires “ ‘the specific intent to cause
a maiming injury.’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 86.)
       Defendant contends the evidence was insufficient to support the conviction for
aggravated mayhem. He argues that the evidence proves, at most, that he intended to
cause an injury that appeared severe for the purpose of falsely holding Robles responsible
for violent conduct, and that the evidence is not sufficient to establish that he intended to
cause permanent injury. The argument rests on the premise that evidence of his intent to
falsely accuse Robles is inadequate to prove an intent to permanently disfigure Hall. We
find this argument unpersuasive.
       When considering a defendant’s challenge to the sufficiency of the evidence, the
court reviews the entire record most favorably to the judgment to determine whether it
contains substantial evidence from which a trier of fact could rationally find the essential
elements of the crime beyond a reasonable doubt. The court does not reweigh evidence
or reassess a witness’s credibility; we presume the existence of every fact the trier of fact
could reasonably deduce from the evidence. (People v. Lindberg (2008) 45 Cal.4th 1,
27.) “Unless it is clearly shown that ‘on no hypothesis whatever is the sufficient
substantial evidence to support the [jury’s] verdict[s,]’ we will not reverse.” (People v.


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Stewart (2000) 77 Cal.App.4th 785, 790.) If the circumstances reasonably justify the
jury’s findings, reversal is not warranted merely because the circumstances might also be
reasonably reconciled with a contrary finding. (People v. Nelson (2011) 51 Cal.4th 198,
210.) For specific intent crimes, “[e]vidence of a defendant's state of mind is almost
inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to
support a conviction.” (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
       Defendant makes the erroneous assumption that his intent to frame Robles is
irreconcilable with an intent to permanently injure Hall. It may be, as defendant
suggests, that the jury could have concluded that the deep slashes down Hall’s back were
inflicted with the intention of only creating the appearance of a severe injury for the
purpose of falsely incriminating Robles. But the nature of the injuries to Hall’s back
were such that the jury could also properly conclude that, for the purpose of framing
Robles, defendant intended to cause injuries that would be permanent. (People v.
Manibusan, supra, 58 Cal.4th at p. 88.)
       Although “[e]vidence that shows no more than an ‘indiscriminate attack’ is
insufficient to prove required specific intent,” here there was ample evidence to support
an inference of intent to maim rather than to attack indiscriminately. (People v. Park
(2003) 112 Cal.App.4th 61, 64; People v. Ferrell (1990) 218 Cal.App.3d 828, 835.) “A
jury may infer a defendant’s specific intent from the circumstances attending the act, the
manner in which it is done, and the means used, among other factors.” (People v.
Ferrell, supra, at p. 834.) “[E]vidence of a “controlled and directed” attack or an attack
of “focused or limited scope” may provide substantial evidence of a specific intent to
maim.” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831 (Szadziewicz), quoting
People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.)
       In Szadziewicz, the defendant was convicted of aggravated mayhem after he
entered the hotel room of his daughter’s boyfriend without notice, held him on the bed,
and slashed his face with a box cutter from the temple towards the nose, then back
towards the ear. (People v. Szadziewicz, supra, 161 Cal.App.4th at pp. 829, 832.)
Defendant claimed he entered the victim’s room to find drugs but aborted the mission


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because of the altercation. (Id. at p. 831.) On appeal, the court held that the “placement
and nature” of the “facial lacerations amply supported a reasonable inference that
[defendant] meant to disfigure” the victim’s face. (Id. at p. 832.) Here, much like the
situation in Szadziewicz, defendant pinned the victim to the ground and slashed her with a
box cutter. This was not a random attack, but a controlled and directed attack on Hall’s
back. (People v. Ferrell, supra, 218 Cal.App.3d at p. 835.) Defendant planned to carve
an “X” on Hall’s body. The depth of the cuts was so great that Officer Augusto described
the injury as “one of the most horrific injures” he had ever seen. Like the victim in
Szadziewicz, Hall received over 100 stitches and was hospitalized for several days.
Viewed in the light most favorable to the judgment, the jury could reasonably infer that
defendant acted with the requisite specific intent to permanently disfigure Hall.

2. Substantial evidence supports the inference that defendant was 16 years old when he
committed the crime he was found to have committed in juvenile court.

       Documentary evidence presented in the second phase of trial showed that
defendant, born in December 1976, was found by the juvenile court in 1993 to have
committed an armed robbery and, in 2006, as part of a negotiated plea to a charge of
inflicting corporal injury on a spouse, admitted that the 1993 juvenile adjudication was a
prior strike conviction. Defendant asserts, for the first time on appeal, that there is
insufficient evidence that he was 16 years of age when he committed the robbery, the
subject of the 1993 juvenile adjudication. Without evidence that he was 16 years old at
the time of the offense, he contends the juvenile adjudication does not qualify as a strike
under sections 667, subdivision (d)(3)(A) and 1170.12.
       To warrant imposition of the increased sentences authorized by the Three Strikes
law, the prosecution must present evidence to establish that a prior conviction (or
adjudication) was a strike as defined by the statute. (Cerda v. HedgPetch (C.D. Cal.
2010) 744 F.Supp.2d 1058, 1071; People v. Blackburn (1999) 72 Cal.App.4th 1520,
1530.) However, proof of a prior conviction “is not required where the defendant admits
a properly pleaded enhancement pursuant to a plea bargain, . . . where a bargain is struck,
the defendant’s admission is not limited to the scope of the fact of the conviction, but

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extends to all allegations concerning the prior, even though the People might have been
unable to prove those allegations.” (People v. Leever (1985) 173 Cal.App.3d 853, 872,
disapproved on other grounds in People v. Ervin (2000) 22 Cal.4th 48, 91.) In
HedgPetch, petitioner’s previous “2003 admission that he suffered a prior strike by virtue
of a 1993 conviction obviated the need for the prosecution to come forward with any
evidence concerning the 1993 conviction, and rendered the 1993 conviction a serious
felony and a strike under California law.” (Cerda, supra, at p. 1071.)
       At trial, defendant did not question the sufficiency of the evidence to prove he was
16 years of age when he committed the robbery adjudicated by the juvenile court in 1993.
Waiver aside, the evidence presented to the jury confirms that defendant admitted to
incurring a prior strike in connection with his 2006 plea bargain. The first page of the
2006 presentence report states, “Guilty plea and admission as to prior strike conviction.”
Reference is made to the admitted prior strike on the second page of the 2006 presentence
report, which is a copy of the juvenile adjudication from 1993. Defendant’s admission to
a prior strike obviated the need for further evidence concerning the 1993 juvenile
adjudication. Although defendant contends that the “strike” to which he previously
admitted is not the 1993 juvenile adjudication, he has not offered any evidence of any
other adjudication to which he might have been referring. In all events, even if defendant
was referring to a different adjudication, that would not change the significance of his
admission that he had incurred a single prior “strike.”
       Thus, the record contains sufficient evidence that defendant’s juvenile
adjudication qualified as a strike under the Three Strikes law.

3. The use of defendant’s prior juvenile adjudication as a “strike” is constitutional.

       Defendant asserts the court’s use of the prior juvenile adjudication to double the
penalty for his conviction of aggravated mayhem violates his Fifth, Sixth and Fourteenth
Amendment rights under the United States v. Tighe (2001) 266 F.3d 1187 and Apprendi
v. New Jersey (2000) 530 U.S. 466 line of cases, because he was not entitled to a jury
trial in his juvenile proceedings. Defendant acknowledges that in People v. Nguyen


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(2009) 46 Cal.4th 1007, 1025, our Supreme Court rejected these constitutional
arguments, but asserts them for the purpose of preserving for federal review the
contention that Nguyen was wrongly decided. We of course are bound by the Supreme
Court decision in Nguyen. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.)

4. The trial court erred in imposing two life sentences

       Because of defendant’s prior strike, the trial court construed the Three Strikes law
to require it to double the life sentence prescribed by section 205 and imposed on
defendant two indeterminate life terms. Defendant correctly contends, as the Attorney
General acknowledges, that the court instead should have sentenced him to one
indeterminate term, with the seven-year minimum period of confinement for parole
eligibility (§ 3046) doubled to a minimum of 14 years. (People v. Jefferson (1999) 21
Cal.4th 86, 96-101.)

                                       Disposition

       The matter is remanded to the superior court with directions to resentence
defendant in accordance with the views expressed herein. In all other respects the
judgment is affirmed.

                                                 _________________________
                                                 Pollak, J.

We concur:


_________________________
McGuiness, P. J.


_________________________
Jenkins, J.




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