Filed 9/16/14 P. v. Trasvina CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064711

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD245664)

MARITZA ADELINA TRASVINA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Amalia L.

Meza, Judge. Affirmed.

         Kleven McGann Law and Sarah Kleven McGann, under appointment by the Court

of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Teresa Torreblanca, Deputy

Attorney General, for Plaintiff and Respondent.

         This case arose out of two fights that occurred outside a nail salon in the City of

San Diego and involved defendant Maritza Adeline Trasvina, her four codefendants
(Trasvina's mother, Eleanor Govea; Eleanor's daughter, Christina Govea;1 Tara Torum;

and Brittney Spivey, who are not parties to this appeal), and two victims (Elizabeth

Cuevas and Conception Cuevas2).

       A jury convicted Trasvina of five felony offenses: two counts of assault with a

deadly weapon in violation of Penal Code3 section 245, subdivision (a)(l) (victims:

Conception & Elizabeth, respectively); two counts of battery with serious bodily injury in

violation of section 243, subdivision (d) (victims: Conception & Elizabeth, respectively);

and one count of mayhem in violation of section 203, subdivision (d) (victim: Elizabeth).

       At the sentencing hearing, the court suspended the imposition of sentence and

granted Trasvina three years of formal probation.

       Trasvina appeals, contending her mayhem conviction must be reversed because

there is no substantial evidence to show the victim, Elizabeth, suffered permanent

disfigurement. We conclude substantial evidence supports the jury's finding that she

suffered permanent disfigurement within the meaning of section 203. Accordingly, we

affirm the judgment.




1       As Eleanor Govea and Christina Govea share the same last name, in the interests
of clarity we refer to them by their first names. We intend no disrespect.

2      As Elizabeth Cuevas and Conception Cuevas also share the same last name, in the
interests of clarity we refer to them by their first names. Again, we intend no disrespect.

3      All further statutory references are to the Penal Code.
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                                  FACTUAL BACKGROUND

       On December 29, 2012, Trasvina's mother, Eleanor, called Trasvina at work and

said she was at a nail salon and two sisters─Conception and Elizabeth─had threatened

her. Trasvina drove to the nail salon on El Cajon Boulevard. By the time she arrived,

Eleanor and Conception had been arguing and swearing at one another for about 45

minutes. Trasvina's half-sister, Christina, arrived at the nail salon around the same time

as Trasvina.

       Trasvina, who testified on her own behalf, admitted she threw the first punch by

hitting Conception outside the nail salon. A large fight─involving Trasvina, Conception,

Elizabeth, Eleanor, Christina, Torum, and Spivey─broke out. This first fight was

captured by a cellphone video recording, which was later posted on Facebook and played

for the jury. During the fight Trasvina repeatedly kicked Conception, and Christina used

a tire iron to hit Conception several times, while Conception was lying on the ground.

Trasvina testified that she kicked Conception in the back while Christina was hitting her

with the tire iron because Trasvina was afraid for her life and she felt she needed to

protect herself. Conception testified that neither she nor her sister Elizabeth was bleeding

at the end of this first fight.

       Elizabeth and Conception both testified that a second fight started outside the nail

salon about a minute later. Elizabeth testified that when she ran outside, Trasvina hit her

on the left side of her face with a "silver" metal weapon that was larger than the tire iron

Christina was using again to hit Conception.



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       The second fight ended when Trasvina and her family left after Trasvina hit

Elizabeth in the face with the metal weapon. Elizabeth and Conception were taken to the

hospital in an ambulance. Conception suffered a head injury that required six staples.

Elizabeth had a gaping wound on the left side of her face below her mouth. Conception

described Elizabeth's wound as "a hole" in her face. The wound, including the hole, is

depicted in color photographs that were taken at the hospital and received in evidence.4

Elizabeth testified she suffered this wound when Trasvina hit her with a piece of metal.

Elizabeth also testified that treatment of her injury required stitches, and that she had

suffered scarring on her face as a result of the injury.

                                       DISCUSSION

       Trasvina contends her mayhem conviction must be reversed because there is no

substantial evidence to show the victim, Elizabeth, suffered permanent disfigurement.

Specifically, Trasvina asserts that although the prosecution "presented evidence from

several witnesses describing [Elizabeth's] injury from the day of the fight as well as three

pictures of her injury," it presented no evidence she suffered any permanent

disfigurement. She asserts "[t]he record does not include how many stitches [Elizabeth]

received," it "does [not] describe the size of the wound on the day of the incident," and it

does not describe "the size or existence of any remaining scar or permanent

disfigurement." Trasvina further asserts "the photos [(People's Exhibits Nos. 7-9)] and

the remainder of the record provide no description of the present day appearance of the


4     At the Attorney Generals' request, these photographs─People's Exhibits Nos. 7
through 9─were transmitted to this court.
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injury"; and, thus, "it is impossible to establish that [Elizabeth] was permanently

disfigured." We conclude substantial evidence supports the jury's finding that Elizabeth

suffered a permanent disfiguring injury to her face.

       A. Applicable Legal Principles

       1. Mayhem

       The crime of simple mayhem is codified in section 203, which provides: "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." (Italics added.)

       The California Supreme Court recently explained that "[s]ection 203 generally

prohibits six injurious acts against a person, three that specify a particular body part and

three that do not: (1) dismembering or depriving a part of someone's body; (2) disabling

or rendering useless a part of someone's body; (3) disfiguring someone; (4) cutting or

disabling the tongue; (5) putting out an eye; and (6) slitting the nose, ear or lip." (People

v. Santana (2013) 56 Cal.4th 999, 1003 (Santana), italics added.)

       Although section 203 does not expressly require that a mayhem conviction

involving disfigurement be based on proof that the disfigurement is permanent, "case law

has 'grafted' on to section 203 the requirement that a disfiguring injury be permanent."

(Santana, supra, 56 Cal.4th. at p. 1007, quoting People v. Newby (2008) 167 Cal.App.4th

1341, 1347.) A disfiguring injury "'may be considered legally permanent for purposes of

mayhem despite the fact that cosmetic repair may be medically feasible.'" (Santana, at p.

1007, quoting People v. Hill (1994) 23 Cal.App.4th 1566, 1574-1575.)

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       The Santana court also explained that the rationale for the crime of mayhem is

"'"the preservation of the natural completeness and normal appearance of the human face

and body."'" (Santana, supra, 56 Cal.4th. at p. 1004, quoting People v. Newble (1981)

120 Cal.App.3d 444, 451, italics added.)

       "'[N]ot every visible scarring wound' may establish mayhem under section 203."

(Santana, supra, 56 Cal.4th at p. 1004, quoting Goodman v. Superior Court (1978) 84

Cal.App.3d 621, 625.) However, a conviction of mayhem under section 203 does not

require proof that the disfigurement is "serious" or that the disfiguring wound required

extensive suturing. (Santana, at p. 1010.)

       2. Substantial evidence standard of review

       When assessing a challenge to the sufficiency of the evidence supporting a

conviction, we apply the substantial evidence standard of review, under which we view

the evidence "in the light most favorable to the judgment below to determine whether it

discloses substantial evidence—that is, evidence that 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, 319.) "The same standard of review applies to cases in

which the prosecution relies mainly on circumstantial evidence." (People v. Maury

(2003) 30 Cal.4th 342, 396.)

       We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate

the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v.

Jones (1990) 51 Cal.3d 294, 314.) "Resolution of conflicts and inconsistencies in the

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testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34

Cal.4th 1149, 1181.)

       B. Analysis

       Viewing the evidence in the light most favorable to the judgment of conviction, as

we must (People v. Johnson, supra, 26 Cal.3d at p. 578), we conclude the prosecution

met its burden of presenting substantial evidence from which a reasonable trier of fact

could find beyond a reasonable doubt that Elizabeth suffered a legally permanent

disfiguring injury to her face within the meaning of section 203, which she testified she

suffered when Trasvina hit her with a piece of metal. As already noted, Elizabeth's pre-

surgery facial wound is depicted in color photographs that were taken at the hospital and

received in evidence. As Trasvina correctly asserts on appeal, the photographs show that

the wound "was approximately [one to one-and-a-half] inches long between her lower lip

and chin." The victim's sister, Conception, described Elizabeth's wound as a "hole" in her

face. One of the photographs depicting a close-up view of the wound shows that the hole

passes through the left side of Elizabeth's face to the inside of her mouth. The

photographs also show that a chunk of skin is missing below the hole.

       Although the record contains no photographic evidence depicting Elizabeth's face

following the surgical repair of the wound, substantial evidence establishes the wound

required suturing and resulted in scarring that altered the normal appearance of her face.

Specifically, after the prosecutor showed Elizabeth the three photographs of her facial

wound and she acknowledged she had suffered that wound, the prosecutor asked her,

"How did it make you feel when you say that that was the injury to your face?" Elizabeth

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answered, "I was crying. I'm going to be scarred for life." The following exchange then

took place between the prosecutor and Elizabeth:—

           "[Prosecutor:] Did you receive any treatment for that injury at the
           hospital that day?

           "[Elizabeth:] Yeah, I got—I got stitches in my—on my face.

           "[Prosecutor:] And have you had scarring from that injury?

           "[Elizabeth:] Yes.

           "[Prosecutor:] Have you ever considered whether you would down
           the road receive any treatment for the scarring?

           "[Elizabeth:] Yes.

           "[Prosecutor:] Have you received any?

           "[Elizabeth:] No, not yet.

           "[Prosecutor:] And what type of treatment have you considered?

           "[Elizabeth:] Some surgery. Plastic surgery or something."

       Elizabeth's testimony that she "got stitches" on her face, that she had suffered

"scarring" as a result of her injury, that she felt she was "going to be scarred for life," and

that she had considered undergoing cosmetic surgery as treatment for the scarring amply

supports a finding that she suffered a legally permanent injury to her face that was

disfiguring in that it resulted in scarring that altered the normal appearance of her face.

This evidence is sufficient to support the jury's finding that Elizabeth suffered permanent

disfigurement for purposes of section 203. As already discussed, the fact that cosmetic

surgical repair of the scarring may be feasible is of no moment. (Santana, supra, 56

Cal.4th. at p. 1007 [Disfiguring injury "'may be considered legally permanent for

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purposes of mayhem despite the fact that cosmetic repair may be medically feasible.'"].)

Also, Trasvina's complaint that "[t]he record does not include how many stitches

[Elizabeth] received" is unavailing. A conviction of mayhem under section 203 does not

require proof that the disfiguring wound required extensive suturing. (Santana, at p.

1010.) Her complaint that the record does not describe the size of Elizabeth's residual

scar is also unavailing because section 203 does not provide that the disfiguring injury

must be of a minimum size, and a conviction of mayhem under section 203 does not

require proof that the disfigurement be serious (Santana, at p. 1010). As noted, our

Supreme Court recently explained that the rationale for the crime of mayhem is " ' "the

preservation of the natural completeness and normal appearance of the human face and

body." ' " (Santana, at p. 1004, italics added.)

       For all the foregoing reasons, we conclude that Trasvina's claim that her mayhem

conviction must be reversed because there is no substantial evidence to show the victim

suffered permanent disfigurement, is without merit. Accordingly, we affirm the

judgment.

                                      DISPOSITION

       The judgment is affirmed.

                                                                                NARES, J.
WE CONCUR:


McCONNELL, P. J.


HUFFMAN, J.


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