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.
