Filed 7/24/15 P. v. Alvarado CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B256258

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA358128)
         v.

OSCAR ALVARADO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Leslie A. Swain, Judge. Affirmed in part, modified, and remanded.
         Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General,
for Plaintiff and Respondent.
                                   INTRODUCTION


       Defendant and appellant Oscar Alvarado (defendant) was convicted of aggravated
mayhem (Pen. Code, § 2051), criminal threats (§ 422), and assault by means likely to
produce great bodily injury (§ 245). On appeal, defendant contends that insufficient
evidence supports his conviction for aggravated mayhem (count 2), and the abstract of
judgment must be amended consistent with trial court’s oral pronouncement of judgment
that he was sentenced to life with the possibility of parole on count 2. The Attorney
General argues that the judgment must be modified, and the abstract of judgment must be
amended, to reflect that defendant was entitled to receive 83 days of conduct credit
instead of 84 days. We remand the matter for the trial court to amend the abstract of
judgment to reflect the trial court’s oral pronouncement that defendant was sentenced to
life with the possibility of parole on count 2, and to modify the judgment and amend the
abstract of judgment to reflect that defendant was entitled to receive 83 days of conduct
credit, for a total of 640 days of presentence custody credit. We otherwise affirm the
judgment.




1
       All statutory citations are to the Penal Code unless otherwise noted.


                                             2
                                   BACKGROUND


       A.     Factual Background


              1.     Prosecution Evidence


                     a)     The Incident on November 4, 2008—Assault by Means
                            Likely to Produce Great Bodily Injury (Count 5)


       Defendant and Jennifer M. were neighbors who had known each other for many
years. In about 2008, they had an “unofficial” dating relationship.
       In May 2008, while Jenifer and defendant were seeing each other romantically,
Jennifer had a baby with another man. In November 2008, Jennifer was living with her
baby’s father, which situation aggravated defendant.
       On November 4, 2008, as Jennifer was walking home from a store after
purchasing water to make milk for her child, defendant exited a hole in a nearby gate and
approached her. Defendant kicked a bag containing the purchased water that Jennifer
was carrying. Defendant also punched her several times in the face, causing her to fall to
the ground. While Jennifer was on the ground, defendant kicked her in the arms and
called her “bitch” and “hoe.” Defendant took her cellular telephone. Jennifer cried and
yelled for help, but no one responded. She got up from the ground and ran back to the
store. People from the store drove Jennifer to her home.
       Jennifer’s sister drove Jennifer to the police station, where Jennifer reported the
incident. Jennifer told Los Angeles Police Officer Asia Hodge that defendant had
threatened her by saying, “If you’re not going to be with me, you’re not going to be with
anybody. I’ll kill you first before I let you leave.” Jennifer also told Officer Hodge that
defendant had threatened to kill her if she got back together with the father of her child.
Officer Hodge observed a small bruise or cut on Jennifer’s lip, and multiple bruises on
her forehead and cheeks.

                                              3
                       b)     The incident on March 12, 2009—Aggravated Mayhem
                              (count 2); Criminal Threats (count 3)
         On March 12, 2009, Jennifer was still living with the father of her child. On that
date, at about 8:20 p.m., Jennifer walked up to a gate outside her residence and defendant
ran towards her. Jennifer tried to run away and jump over the fence of the adjoining
property, but defendant caught up to her before she could escape. Jennifer tried to hug
defendant and told defendant that he did not “want to do this.” Defendant punched
Jennifer “real hard.” Defendant pulled out a “butterfly” knife. Jennifer heard “a click
sound,” and defendant began stabbing her. Jennifer previously testified at the
preliminary hearing in this case that defendant said, “‘If you’re not going to be mine, I’m
going to slice your pretty face off.’” Defendant cut Jennifer across the right side of her
face. Defendant also stabbed Jennifer in the left arm, chest, and below the left breast.
Jennifer screamed for help. She was bleeding profusely and was feeling weak. Jennifer
was standing against a wall, and she slid down the wall, until she eventually fell to the
ground.
         Jennifer’s screams for help were heard by Samuel Gibson, who went outside his
house to investigate the matter. When Gibson asked defendant and Jennifer what they
were doing, defendant told him to mind his own business and leave, and Jennifer told
Gibson that defendant was stabbing her and pleaded for help. Defendant left the scene
when Gibson threatened to call police. Gibson brought Jennifer to his home and called
the police. Defendant was later arrested.
         Jennifer was taken to the hospital where she received staples for some of her
wounds and eight stitches for her facial cut. Los Angeles Police Department Officer
Ledesma went to the hospital and spoke to Jennifer. Jennifer stated that during the
stabbing incident, defendant said, “‘I’m going to kill you. If I can’t have you, no one
can.’”
         At the time of trial, Jennifer had a scar on her face, which went from the edge of
her right nostril to the middle of her right cheek. Dr. David Duarte, the trauma surgeon

                                               4
who oversaw Jennifer’s treatment at the hospital, explained that Jennifer’s facial wound
required stitches, and had Jennifer never sought medical treatment, she would have had
“a divot in [her] skin.”
       Dr. Duarte testified that stitches do not prevent scarring because “nothing’s
guaranteed in medicine.” Even if the stitches are removed within five days, it reduces the
chances of a scar resulting, or minimizes the scar, but there could still be a scar.
       In Dr. Duarte’s experience, patients with facial lacerations sutured with the type of
thread used for Jennifer’s facial stitches end up with minimal scarring or no scarring.
The longer a person waited to remove the sutures, the greater the likelihood of a scar
developing. If the person waits more than two weeks to remove the sutures, it is very
likely that a scar will develop.
        According to Dr. Duarte, apparently based on the nurse’s notes contained in
Jennifer’s medical records, Jennifer was told to return to the hospital in five days to have
her stitches removed. Dr. Duarte however said that there was no indication in the records
that she returned to the hospital.
       While at the hospital Jennifer was anxious and took pain medication, including
Morphine and Dilaudid. She testified that she did not recall that she was told to go back
to the hospital to have the stitches removed, and said that she did not receive instructions
about when to go back to remove the stitches. She testified that the hospital staff gave
her a lot of paperwork, but she never looked through them because she was “emotionally,
psychologically devastated.”
       Jennifer testified that she did not return to the hospital to have her stitches
removed because she could not afford it. Approximately two to three weeks after the
incident, although she was afraid to do so, Jennifer removed her own stitches.
       Los Angeles Police Detective Scarlett Martinez interviewed Jennifer at her
residence. Jennifer said at that time that before defendant stabbed her, he stated, “‘Fuck
you, bitch. If you’re not going to be with me, I’m going to slice your pretty face off[.]’”




                                               5
              2.     Defendant’s Evidence
       Defendant was on probation in a juvenile matter, and therefore he wore a home
detention ankle bracelet set up to monitor whether he remained within 150 feet of his
residence.2 There was a 10-minute “leave window,” meaning that if defendant left the
150-foot radius of his home and returned within 10 minutes, no event would be reflected
in the monitoring records.
       Brad Collins was employed by the company responsible for monitoring
defendant’s ankle bracelet while defendant was under home detention. Collins testified
that according to the company’s records, on March 12, 2009, defendant left his home at
9:37 p.m., and returned at 9:49 p.m., and defendant left his home again at 10:00 p.m. and
returned at 10:49 p.m.
       Julie Guillen, who was married to defendant’s cousin, lived in the back house on
the property where defendant lived with his parents. Guillen testified that on March 12,
2009, she saw defendant at about 8:00 p.m., was with defendant from about 8:10 through
8:40 p.m., and shortly thereafter she saw defendant in his room.


       B.     Procedural Background
       The District Attorney of Los Angeles County filed an information charging
defendant with attempted murder in violation of section 187, subdivision (a) (count 1);
aggravated mayhem in violation of section 205 (count 2); criminal threats in violation of
section 422 (count 3); assault by means likely to produce great bodily injury in violation
of section 245, subdivision (a)(1) (count 5);3 and attempted criminal threats in violation
of sections 422 and 664 (count 6). The District Attorney alleged as to counts 1 and 2 that
defendant personally used a deadly and dangerous weapon within the meaning of section
12022, subdivision (b)(1). The trial court dismissed count 6 pursuant to section 1118.1.



2
       Defendant’s residence was located 279 feet away from Jennifer’s residence.
3
       The information did not contain a count 4.

                                             6
       Following trial, the jury found defendant guilty of aggravated mayhem (count 2),
and found the deadly and dangerous weapon allegations to be true. The jury also found
defendant guilty of criminal threats (count 3) and assault by means likely to produce great
bodily injury (count 5). The jury was unable to reach a verdict on the attempted murder
(count 1), and that count was dismissed.
       The trial court sentenced defendant to state prison for a term of life, consisting of a
term of life with the possibility of parole plus an additional one-year term for the weapon
enhancement on count 2. On count 5, the trial court imposed a middle term of three years
with the sentence to run consecutively to the sentence imposed on count 2. With respect
to count 3, the trial court sentenced defendant to the midterm of two years, and the
sentence was stayed pursuant to section 654.
       The trial court awarded defendant custody credit, and ordered him to pay various
fees, fines and penalties. Defendant filed a timely notice of appeal.


                                      DISCUSSION


       A.     Substantial Evidence Regarding Aggravated Mayhem
       Defendant contends that insufficient evidence supports his conviction for
aggravated mayhem in count 2. We disagree.


              1.     Standard of Review
       As our Supreme Court stated, “‘When considering a challenge to the sufficiency
of the evidence to support a conviction, we review the entire record in the light most
favorable to the judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We
determine ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in

                                              7
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.’ [Citation.]” (People v. Edwards (2013) 57 Cal.4th 658, 715.)
        “Substantial evidence includes circumstantial evidence and the reasonable
inferences flowing therefrom.” (People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064.)
“We ‘must accept logical inferences that the jury might have drawn from the
circumstantial evidence. [Citation.]’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th
327, 357-358.) In determining whether substantial evidence supports a conviction, “we
do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary
to the verdict, or reevaluate the credibility of witnesses.” (People v. Little (2004) 115
Cal.App.4th 766, 771, citing People v. Jones (1990) 51 Cal.3d 294, 314.)


              2.     Analysis
        Defendant challenges the sufficiency of the evidence supporting the jury’s finding
that his act of cutting Jennifer’s face with a knife caused the scar on her face. Defendant
argues that Jennifer was negligent in failing to follow medical advice to have the stitches
removed in five days, and instead removing them herself after two to three weeks, and
that negligence constituted an “intervening and/or superseding cause” of the scar on her
face.
        The trial court instructed the jury, pursuant to CALCRIM No. 800, as follows:
“The Defendant is charged in count 2 with aggravated mayhem, in violation of Penal
Code section 205 in connection with the injury to Jennifer M.’s face. . . . [¶] To prove
that the defendant is guilty of this crime, the People must prove that: [¶] number 1, the
defendant unlawfully and maliciously disabled or disfigured someone permanently or
deprived someone else of a limb, organ, or part of her body; [¶] number 2, when the
defendant acted, he intended to permanently disable or disfigure the other person or
deprive the other person of a limb, organ, or part of her body and; [¶] number 3,
under the circumstances, the defendant[’]s act showed extreme indifference to the
physical or psychological well-being of the other person. [¶] Someone acts maliciously
when he or she intentionally does a wrongful act or when he acts with the unlawful intent

                                              8
to annoy or injure someone else. [¶] A disfiguring injury may be permanent even if it
can be repaired by medical procedures.”
       The trial court also instructed the jury, pursuant to CALCRIM No. 240, on
causation: “An act causes permanent disfigurement if the permanent disfigurement is the
direct, natural and probable consequence of the act and the permanent disfigurement
would not have happened without the act or omission. [¶] A natural and probable
consequence is one that a reasonable person would know is likely to happen if nothing
unusual intervenes. [¶] In deciding whether a consequence is natural and probable,
consider all the evidence established by the evidence. [¶] There may be more than one
cause of permanent disfigurement. An act causes permanent disfigurement only if it is a
substantial factor in causing the permanent disfigurement. [¶] A substantial factor is
more than a trivial or remote factor; however, it does not have to be the only factor that
causes the permanent disfigurement.”
       “It is well established that a crime victim’s contributory negligence is not a
defense. [Citations.]” (People v. Marlin (2004) 124 Cal.App.4th 559, 569.) A defendant
may be “‘criminally liable for a result directly caused by his or her act, even though there
is another contributing cause.’” (People v. Catlin (2001) 26 Cal.4th 81, 156, quoting 1
Witkin & Epstein, Cal. Criminal Law (3d. 2000) Elements, § 37, p. 243.) “The defendant
remains criminally liable if either the possible consequence might reasonably have been
contemplated or the defendant should have foreseen the possibility of harm of the kind
that could result from his act. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 847.)
       The California Supreme court stated, “‘In general, an “independent” intervening
cause will absolve a defendant of criminal liability. [Citation.] However, in order to be
“independent” the intervening cause must be “unforeseeable . . . an extraordinary and
abnormal occurrence, which rises to the level of an exonerating, superseding cause.”
[Citation.] On the other hand, a “dependent” intervening cause will not relieve the
defendant of criminal liability. “A defendant may be criminally liable for a result directly
caused by his act even if there is another contributing cause. If an intervening cause is a
normal and reasonably foreseeable result of defendant’s original act the intervening act is

                                             9
‘dependent’ and not a superseding cause, and will not relieve defendant of liability.
[Citation.] ‘[ ] The consequence need not have been a strong probability; a possible
consequence which might reasonably have been contemplated is enough. [ ] The precise
consequence need not have been foreseen; it is enough that the defendant should have
foreseen the possibility of some harm of the kind which might result from his act.’
[Citation.]” [Citation.]’ [Citations.]” (People v. Cervantes (2001) 26 Cal.4th 860, 871.)
       “[I]t is only an unforeseeable intervening cause, an extraordinary and abnormal
occurrence, which rises to the level of an exonerating, superseding cause. [Citations.]”
(People v. Armitage (1987) 194 Cal.App.3d 405, 420-421.) To constitute a sole or
superseding cause, the victim’s conduct must have been “so unusual, abnormal, or
extraordinary that it could not have been foreseen. [Citation.]” (People v. Schmies
(1996) 44 Cal.App.4th 38, 52.) Absent such conduct, evidence the victim “may have
shared responsibility or fault for the accident does nothing to exonerate [a] defendant for
his role” and “is not relevant.” (Id. at p. 51.) It is generally a question of fact whether an
independent act is a superseding cause of injury (People v. Morse (1992) 2 Cal.App.4th
620, 670), “unless undisputed evidence reveals ‘“a cause so remote that a court may
properly decide that no rational trier of fact could find the needed nexus. [Citations.]”
[Citation.]’ (People v. Cervantes[, supra,] 26 Cal.4th [at pp.] 871-872 [ ].)” (People v.
Moncada (2012) 210 Cal.App.4th 1124, 1133.)
       In People v. Roberts (1992) 2 Cal.4th 271, the defendant was convicted of the
murder of his fellow state prison inmate. At trial, the defendant argued there was
evidence that tended to establish the victim died as a result of incompetent medical care
and therefore the stabbing was not the proximate cause of the victim’s death. (Id. at p.
296.) On appeal, the defendant contended that the trial court erred in failing to give his
proposed modified jury instruction that the stabling was not the proximate cause of the
victim’s death if the medical care the victim received after the assault amounted to the
sole cause of his death. (Id. at p. 311.)
       In rejecting defendant’s contention, the Supreme Court stated, “If a person inflicts
a dangerous wound on another, it is ordinarily no defense that inadequate medical

                                              10
treatment contributed to the victim’s death. [Citations.] To be sure, when medical
treatment is grossly improper, it may discharge liability for homicide if the maltreatment
is the sole cause of death and hence an unforeseeable intervening cause. [Citations.] But
here the record is devoid of any evidence of grossly improper treatment.” (People v.
Roberts, supra, 2 Cal.4th at p. 312.) The court held that there was no need to instruct the
jury on a theory for which no evidence had been presented because the record failed to
show that the treatment regimen constituted a supervening cause of death. (Id. at pp.
312-313.)
       The jury here reasonably could conclude that Jennifer’s facial scar was a direct,
natural, and probable consequence of defendant’s act of cutting her face with a knife.
Her failure not to follow the purported medical advice to have the stitches removed
within five days did not, as a matter of law, constitute a superseding or independent
intervening cause of the scar.
       As noted above, we review the evidence in the light most favorable to the
judgment. (People v. Edwards, supra, 57 Cal.4th at p. 715.) There was conflicting
evidence whether Jennifer received instructions about when to come back to remove the
stitches. Dr. Duarte testified that Jennifer was told to return to the hospital in five days to
have her stitches removed. Jennifer however testified that she did not receive instructions
about when to come back to remove the stitches. In addition, there was evidence that
even if she was given instructions about when to come back to remove the stitches, she
did not comprehend or remember the instructions. When Jennifer was at the hospital, she
had just experienced a traumatic event, was anxious, and took pain medication. She
never looked through the substantial amount of paperwork given to her by the hospital
staff because she was “emotionally, psychologically devastated.” Even assuming
Jennifer was instructed to return to the hospital to have her stitches removed within five
days, it was reasonably foreseeable that Jennifer would not do so. Jennifer testified that
she could not afford to return to the hospital to have her stitches removed.
       In any event, according to Dr. Duarte, removing the stitches in a timely manner
reduces the chances of a scar resulting, or minimizes the scar, but there could still be a

                                              11
scar. If she sought no medical treatment, she would have suffered greater disfigurement.
Moreover, a disfiguring injury may be “permanent” as required by aggravated mayhem,
even if it can be repaired by medical procedures. (People v. Newby (2008) 167
Cal.App.4th 1341, 1345-1348.) Defendant intentionally injured and, in effect, said he
intended to permanently disfigure Jennifer. Certainly the facts support the conclusion
that defendant showed extreme indifference to Jennifer’s physical well-being. There is
sufficient evidence to support the aggravated mayhem conviction.


       B.     Amendment of Abstract of Judgment
       Defendant contends, and the Attorney General agrees, that the abstract of
judgment must be amended to reflect that defendant was sentenced to life with the
possibility of parole on count 2, in order to accurately reflect the trial court’s oral
pronouncement of judgment. We agree.
       The trial court sentenced defendant to life with the possibility of parole on count 2.
However, the abstract of judgment erroneously reflects that defendant was sentenced to
life in prison without the possibility of parole with respect to count 2.
       “[A] trial court’s oral sentence governs if it is different from what appears in a
minute order or an abstract of judgment [citations] . . . .” (People v. Wynn (2010) 184
Cal.App.4th 1210, 1221; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3;
People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, the abstract of judgment
should be amended to reflect the trial court’s oral pronouncement that defendant was
sentenced to life with the possibility of parole on count 2.


       C.     Modification of Judgment and Amendment of Abstract of
              Judgment Regarding Presentence Custody Credit
       The Attorney General argues, and defendant concedes, that the judgment must be
modified, and the abstract of judgment must be amended, to reflect that defendant was
entitled to receive 83—not 84—days of conduct credit. We agree.



                                              12
       Defendant’s counsel advised the trial court that defendant was entitled to 557 days
of actual custody credit. The trial court then stated, “81 days of good-time/work-time
credit for a total—I’m sorry, 638 days of credit. Again, that’s 557 plus 81 for a total of
638.” The trial court later corrected this comment, stating, “I miscalculated the good-
time/work-time credits. It’s 84 days of credit, so it’s 648 total.” The minute order, as
well as the abstract of judgment, reflect that defendant was credited with 641 days of
presentence custody credit, based on 557 days of actual custody and 84 days of good
time/work time. The trial court’s oral pronouncement of judgment, the minute order, and
abstract of judgment are in error.
       Defendant was in custody for a total of 557 days. A person who is sentenced to a
life sentence “shall accrue no more than 15 percent worktime credit.” (§ 2933.1, subd.
(a).) Fifteen percent of 557 days is 83.55 days. Defendant can accrue no more than 15
percent worktime credit. He therefore is entitled to 83 days of conduct credit. (People v.
Ramos (1996) 50 Cal.App.4th 810, 815-817.) Thus, the judgment should be modified,
and the abstract of judgment must be amended, to reflect that defendant was entitled to
receive 83 days of conduct credit, for a total of 640 days of presentence custody credit.
(People v. Guillen (1994) 25 Cal.App.4th 756, 764.)




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                                         DISPOSITION
       The matter is remanded for the trial court to amend the abstract of judgment to
reflect the trial court’s oral pronouncement that defendant was sentenced to life with the
possibility of parole on count 2, and to modify the judgment and amend the abstract of
judgment to reflect that defendant was entitled to receive 83 days of conduct credit, for a
total of 640 days of presentence custody credit. In all other respects, the judgment is
affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                 MOSK, J.


We concur:



              TURNER, P. J.



              KIRSCHNER, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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