Filed 10/29/14 P. v. Irvin CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B252665

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA408988)
         v.

LAYVONTA IRVIN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Ray G.
Jurado, Judge. Affirmed in part and reversed in part.


         Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for
Defendant and Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Mary Sanchez and David Zarmi, Deputy Attorneys General, for Plaintiff and
Respondent.
       Defendant and appellant Layvonta Irvin appeals from a judgment entered after he
was convicted of mayhem and battery with serious injury. He contends that the mayhem
conviction was not supported by substantial evidence, and that the battery conviction
must be reversed as a lesser included offense of mayhem. Defendant also contends that
the trial court erred in imposing multiple sentence enhancements, and that the abstract of
judgment should be modified to reflect the correct date of sentencing. Respondent agrees
that the battery conviction must be reversed, but contends that the trial court neglected to
impose three one-year sentence enhancements. Respondent asks that we remand to give
the court the opportunity to impose the enhancements or strike the allegations.
       We conclude that substantial evidence supports the mayhem conviction (count 3),
and we affirm that count. We agree that the battery conviction (count 2) must be
reversed. Defendant’s challenge to the sentence enhancements imposed as to count 2 is
rendered moot by its reversal, but we nevertheless strike them to avoid any confusion
caused by the manner in which they were recorded on the abstract of judgment. We
decline to remand for imposition of one-year enhancements, as they were not alleged in
the information as to count 3, the only count remaining after this appeal.
                                     BACKGROUND
Procedural history
       Defendant was charged with the following felony counts after an assault upon
Daniel Raygoza (Raygoza): count 1, assault with a deadly weapon in violation of Penal
Code section 245, subdivision (a)(1);1 count 2, battery with serious bodily injury in
violation of section 243, subdivision (d); and count 3, mayhem in violation of section
203. For purposes of section 667, subdivision(a)(1), as well as the “Three Strikes” law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), it was also alleged that defendant had
suffered a prior serious felony conviction. In addition, the information alleged as to
counts 1 and 2 only, that defendant had suffered three prior convictions for which he




1      All further statutory references are to the Penal Code unless otherwise indicated.

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served prison terms within the meaning of section 667.5, subdivision (b). To all three
counts, defendant pled not guilty and not guilty by reason of insanity.
       A jury found defendant guilty of counts 2 and 3 as charged, and acquitted him of
count 1. In a bifurcated trial, the jury found defendant sane at the time he committed the
offenses. Defendant admitted the prior convictions alleged in the information, and on
October 31, 2013, the trial court sentenced him to a total term of 13 years in prison. The
court imposed the middle term of four years as to count 3, doubled to eight years as a
second strike, plus five years pursuant to section 667, subdivision (a)(1). The court
imposed a concurrent sentence of 11 years on count 2. Defendant was ordered to pay
mandatory fines and fees, and awarded 406 days of presentence custody credit (353
actual days and 53 days of conduct credit).
       Defendant filed a timely notice of appeal from the judgment.
Testimony presented
       On November 13, 2012, while defendant was incarcerated at the Los Angeles
County Jail, Deputy Sheriffs Victor Lima and Clarissa Torres were on duty in the area
where defendant was housed when Raygoza was stabbed in the eye. Defendant and
Raygoza had been seated at adjoining tables in the recreation room, each with one hand
handcuffed to his respective table. At the sound of yelling, the deputies responded to the
recreation room and saw defendant, who had somehow got out of his handcuff, run by
Deputy Lima smelling of urine, into his cell where he refused to answer the deputy’s
questions. Deputy Lima then returned to the recreation room where he saw Raygoza
holding his eye with his head lowered to the table. Deputy Lima saw that Raygoza’s eye
was bloody and there was liquid on his shirt. Raygoza said, “The guy sitting by the
phones stabbed me.” Defendant had been the inmate placed near the telephone. When
Deputy Torres entered the recreation room, she attempted to calm Raygoza, whose eye
was obviously injured. She then discovered a pencil on the floor between the two tables,
as well as an empty but wet milk carton that had been torn open. Several inmates
complained that urine had been thrown on them.



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       First aid was provided until paramedics arrived and transported Raygoza to the
Los Angeles County/USC Medical Center (Medical Center).
Medical records
       Evidence of approximately 585 pages of Raygoza’s medical records from the
Medical Center, documenting the treatment he received there and the diagnoses, were
offered into evidence. The trial court admitted the medical records without objection.
       The medical records show that Raygoza arrived at the hospital on November 13,
2012, able to see only bright lights with his affected eye. He was diagnosed with open
globe due to penetrating trauma and underwent surgery the same day. Following surgery,
Raygoza’s uncorrected vision was 20/400 in the affected eye. A second surgery was
necessary three weeks later, after Raygoza developed choroidals, glaucoma, and a
detached retina. That surgery was performed on December 6, 2012, and Raygoza was
discharged the following day.
       Raygoza returned to the hospital a week later due to increased intraocular pressure
possibly caused in part by silicone oil injected during the initial surgery. Some of the oil
was removed from his eye to relieve the pressure. Raygoza remained in the hospital for
several days. At the time of his discharge Raygoza’s uncorrected vision in the affected
eye was 20/200, and he continued to be at high risk for retinal detachment. In mid-
February 2013, Raygoza underwent another surgery to repair his recurring detached
retina. As with each other surgery, Raygoza was instructed to maintain bed rest, wear an
eye patch, to sleep face down or on his side, and to keep his face down except when
eating or using the bathroom. He was also warned to inform jail medical staff
immediately if he experienced sudden decreased vision or redness and pain, and to keep
all postoperative appointments due to the risk of blindness. His prognosis was guarded.
Raygoza’s vision remained stable at 20/200, but a black circle appeared at the bottom of
his vision.
       By April 2013, Raygoza’s uncorrected vision in the affected eye had increased to
20/150. The treating physician noted that Raygoza would “need refraction for
polycarbonate lenses” by jail optometrists.


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                                       DISCUSSION
I. Mayhem
       Defendant contends that there was insufficient evidence to support his conviction
of mayhem.
       When a criminal conviction is challenged as lacking evidentiary support, “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.” (People v. Johnson (1980) 26 Cal.3d
557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must presume
in support of the judgment the existence of every fact the jury could reasonably deduce
from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We do not reweigh
the evidence or resolve conflicts in the evidence. (People v. Young (2005) 34 Cal.4th
1149, 1181.) Reversal on a substantial evidence ground “is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (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 puts out an eye,
. . . is guilty of mayhem.” (§ 203.) An injury inflicted to the eye amounts to mayhem not
only when it “completely destroys the victim’s eyesight [citation], but also when it causes
impairment less than total blindness.” (People v. Dennis (1985) 169 Cal.App.3d 1135,
1138 (Dennis); see also People v. Nunes (1920) 47 Cal.App. 346, 350 (Nunes) [“What the
statute obviously means by the expression or phrase, ‘put out the eye,’ is that the eye has
been injured to such an extent that its possessor cannot use it for the ordinary and usual
practical purposes of life”].) For example, in Dennis, a blow to the eye dislocated the
victim’s lens, which then had to be removed, leaving him without the ability to focus and
a visual acuity of 20/50 in the injured eye with corrective lenses. (Dennis, supra, at p.
1138.) Similarly, in People v. Green (1976) 59 Cal.App.3d 1 (Green), a machete blow to



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the eye dislocated the victim’s lens, making the victim unable to focus, distorting his
peripheral vision, causing double vision, and requiring corrective lenses. (Id. at pp. 3-4.)
       Here, the injury to Raygoza’s eye impaired his vision, would require eyeglasses,
and caused glaucoma, a recurring detached retina, and a visible black circle. The jury
could reasonably find that Raygoza’s eye was injured to such an extent that he could not
use it for the ordinary and usual practical purposes of life, at least during the nearly five
months that Raygoza was treated at the Medical Center.
       Defendant contends that such evidence was insufficient for the jury to find beyond
a reasonable doubt that the condition was permanent. To constitute mayhem, the
disability caused by the injury must be permanent. (People v. Hill (1994) 23 Cal.App.4th
1566, 1571 (Hill); see People v. Santana (2013) 56 Cal.4th 999, 1007 [permanence
requirement “grafted” onto section 203 by case law].) Defendant cites the warning given
to Raygoza that he risked total blindness if he failed to keep his appointments, and he
appears to infer from the absence of medical records for the six months prior to trial2 that
Raygoza chose not to return for treatment because the risk of blindness had passed.
Defendant contends that the medical records showed Raygoza’s vision was improving
and there was no evidence that it could not be further improved with corrective lenses.
       “[I]n a prosecution for mayhem, the word ‘permanent’ can no longer be applied in
its literal sense.” (Hill, supra, 23 Cal.App.4th at p. 1574.) Thus, the possibility that a
disability may be medically alleviated would not defeat a mayhem conviction. (Ibid.)
Defendant suggests that this principle does not apply where the victim’s eyesight shows
some improvement and his visual impairment is less severe and more susceptible to
medical alleviation than in Dennis, Green, and Nunes. We disagree. As the court
reasoned in Hill: “[I]f evidence of medical alleviation were permitted . . . , culpability
might vary depending on the quality of the medical care available to the victim. It would
thus be possible for two individuals to receive inconsistent verdicts and punishments for




2      Trial began October 2, 2013.

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the very same acts simply because the victim of one could obtain superior medical care.”
(Hill, supra, at p. 1574.)
       We also reject defendant’s suggestion that the absence of more recent medical
records mandated the inference that the injury was transitory. Permanence may be
inferred from an injury’s long duration. (See, e.g., People v. Keenan (1991) 227
Cal.App.3d 26, 36 & fn. 6 [disfiguring scar lasting over three months]; People v. Thomas
(1979) 96 Cal.App.3d 507, 512 [disability from broken ankle lasting over six months],
overruled on other grounds by People v. Kimble (1988) 44 Cal.3d 480, 498; People v.
McWilliams (1948) 87 Cal.App.2d 550, 552 [blind in one eye for seven months].) Here,
nearly five months after the assault, Raygoza’s uncorrected vision in the affected eye had
improved to only 20/150, and there was no indication that the recommendation for
polycarbonate lenses was cancelled. In sum, substantial evidence established that months
later, Raygoza’s eye was still injured to the extent that he was unable to use it for
ordinary purposes. We conclude that a rational jury could reasonably find beyond a
reasonable doubt that the injury was permanent.
II. Multiple convictions
       Defendant contends that his conviction of battery in count 2 must be reversed
because it is a necessarily included offense of mayhem. Respondent agrees, as do we.
“[M]ultiple convictions may not be based on necessarily included offenses. [Citation.]”
(People v. Pearson (1986) 42 Cal.3d 351, 355.) “If the evidence supports the verdict as
to a greater offense, the conviction of that offense is controlling, and the conviction of the
lesser offense must be reversed. [Citations.]” (People v. Moran (1970) 1 Cal.3d 755,
763.) As battery with serious bodily injury is a lesser included offense of mayhem,
defendant should not have been convicted of both crimes. (See People v. Quintero
(2006) 135 Cal.App.4th 1152, 1167.) We thus reverse count 2, the lesser offense.
III. Multiple enhancements
       Defendant contends that the trial court erred in applying a five-year enhancement
to both counts based upon the same prior conviction, pursuant to section 667, subdivision
(a)(1). In its oral pronouncement, the trial court imposed one five-year enhancement as


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to count 2 and one five-year enhancement as to 3. The abstract of judgment, however,
reflects one five-year enhancement and five additional enhancements pursuant to section
667, subdivision (a)(1), with the notation that each of the five additional enhancements
carried a one-year stayed term, for a total stayed term of five years. The trial court did
not impose five one-year enhancements under that statute, and the manner in which the
second five-year enhancement was recorded on the abstract of judgment appears to be a
clerical error.
       As respondent observes, the issue as stated by defendant will be rendered moot by
the reversal of count 2. Further, as count 2 will be reversed, a new abstract will issue,
showing one five-year enhancement under section 667 subdivision (a)(1), imposed as to
count 3 only. To the extent that the remaining five references to one-year enhancements
under section 667 subdivision (a)(1), were meant to reflect enhancements as to count 2,
they necessarily fall with the reversal of count 2. Nevertheless, we order them stricken to
avoid confusion.
       Defendant also requests that we strike the allegation that he served prior prison
terms within the meaning of section 667.5, subdivision (b), as no enhancements were
imposed pursuant to that section. Respondent contends that the trial court “neglected” to
impose the prior prison term enhancements, and asks that the matter be remanded to give
the court the opportunity to impose them or strike the allegations. Defendant admitted
three prior convictions for which he served prison terms within the meaning of section
667.5, subdivision (b). Respondent relies on the rule that “[o]nce the prior prison term is
found true within the meaning of section 667.5(b), the trial court may not stay the one-
year enhancement, which is mandatory unless stricken. [Citations.]” (People v.
Langston (2004) 33 Cal.4th 1237, 1241.)
       Defendant counters that “it is clear that the court did not intend to sentence on
those enhancements.” We agree that the record suggests that the trial court intentionally
omitted enhancements pursuant to section 667.5, subdivision (b), particularly with regard
to count 3, as those allegations were expressly limited to counts 1 and 2 of the
information. Remand would be futile, as there is no such enhancement alleged as to


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count 3; and as there can be no sentence on counts 1 and 2 due to the acquittal of one and
the reversal of the other, the allegations have no effect here. There is thus no need to
order them stricken.
IV. Sentencing date
       Defendant observes in section 16 on page two of the abstract of judgment, the date
that sentence was pronounced is incorrectly noted as October 7, 2013, when the actual
date was October 31, 2013, as correctly noted on the first page of the abstract. As a new
abstract must be prepared, the superior court should insert the correct date of sentencing.
                                      DISPOSTION
       Count 2 is reversed. The five references in the abstract of judgment to one-year
enhancements under section 667, subdivision (a)(1), are stricken. In all other respects,
the judgment is affirmed. The superior court is ordered to prepare an amended abstract of
judgment which reflects these modifications as well as the correct sentencing date on
page two, and to forward a copy of the amended abstract to the Department of
Corrections and Rehabilitation.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                  ____________________________, J.
                                                  CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
HOFFSTADT




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