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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. MILDRED DELGADO, Defendant and Appellant.


Decided: March 29, 2011

Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.



Defendant Mildred Delgado, convicted of, among other things, kidnapping to commit robbery, contends the trial court erred by failing to instruct the jury on principles of aiding and abetting and false imprisonment.   He also maintains the evidence is insufficient to support the jury's finding that he inflicted great bodily injury.   We affirm.


An amended information charged Delgado with kidnapping to commit robbery (Pen.Code, § 209, subd. (b)(1); 1  count 1);  second degree robbery (§ 211;  counts 2 and 3);  and assault with a deadly weapon (§ 245, subd. (a)(1);  count 4).   The information also alleged Delgado personally inflicted great bodily injury (§ 12022.7, subd. (a);  counts 1–4), and used a deadly weapon (§ 12022, subd. (b)(1);  counts 1–3).   Counts 1 and 2 involved events that took place on March 2, 2008, and are the only counts at issue on appeal.   Counts 3 and 4 involved an incident on March 10, 2008.   The charges, initially levied in separate cases, were consolidated for trial.

Following a jury trial, Delgado was convicted on all counts, and the enhancements were found true.   Delgado was sentenced to a total prison term of life, plus 13 years composed of the following:  As to count 1, a life term was imposed, plus three years for the great bodily injury enhancement, and one year for the weapon enhancement. (§§ 12022, subd. (b)(1), 12022.7, subd. (a).)  As to count 3, Delgado received the upper term of five years, plus three years for the great bodily injury enhancement and one year for the use of a weapon. (§§ 211, 12022, subd. (b)(1), 12022.7, subd. (a).)  Sentences as to counts 2 and 4 were imposed, but stayed.   Delgado was also ordered to pay various fines and fees, and awarded custody credits.


The prosecution's case

1. Perez robbery

On March 1, 2008, Melvin Perez drank several beers at home before leaving to visit two bars for more drinks.   Perez stopped first at Salsa L.A., on Beverly Boulevard, but didn't like it there, and decided to head over to El Charo, on Vermont Avenue.

On his way to El Charo, Perez was approached by Delgado, who insisted he knew Perez.   Perez said he did not know Delgado, but the two engaged in friendly banter as they walked along, and Perez bought Delgado a beer when they reached the bar.   Delgado offered Perez drugs and invited him to accompany him to a friend's house, whom Delgado said owed him money.   Perez declined both offers.   Delgado left the bar.   Perez stayed and continued drinking until the bar closed.

That evening Perez wore a ring, watch, chains and a bracelet.   Friends of Perez at the bar saw Delgado staring at Perez's jewelry.   One friend phoned Perez's cousin who came to the bar and offered Perez a ride home.   Perez refused the offer, but permitted his cousin to take the watch and jewelry for safekeeping.

By the time El Charo closed at 2:00 a.m., Perez had consumed eight beers in addition to the six he drank before he left home.   As he left the bar, Perez saw Delgado outside.   He was standing next to a SUV. A woman Perez did not recognize was behind the wheel.   Delgado and the woman asked Perez to go drinking with them, or if he needed a ride.   Perez declined.   Delgado then opened up the rear passenger door, grabbed Perez by the shoulder and said, “come on, let's go in.”   Perez resisted at first, but then agreed to get in the car because he was drunk.   He sat in the rear;  Delgado and the woman sat in the front seats.

The woman drove the car for a short time, and then stopped.   Perez asked Delgado what was going on;  Delgado told him to “shut up.”   Delgado climbed into the back seat.   Perez tried to get out, but the driver had child-locked the doors.   Delgado asked Perez about his jewelry and where it was, and searched Perez's pockets.   Perez said the jewelry had been stolen.

Delgado drew a knife.   He and Perez struggled in the back seat, as the woman drove along Kenmore, past Third Street and about two blocks from where the car had stopped initially.   Delgado took Perez's wallet, which contained $100–$150, and stabbed Perez in the eyebrow and chest.   Perez lost consciousness.

The next thing Perez remembered, he was near his apartment, about one-half mile from the El Charo bar.   He did not recall getting out of the car, and felt as if he was pushed.   He walked to his apartment building, where his neighbors summoned the police, who in turn called the paramedics.   Perez was admitted to the hospital, where he spent about eight hours.   Perez sustained a cut on his left eyebrow, and a puncture wound in the area of his ribs under his left armpit.   His wounds did not require stitches or surgery.

2. Ramirez robbery

On the evening of March 9, 2008, Mauro Ramirez drank several beers at his house, and then walked a short distance to the bar, Salsa L.A., and drank about five more.   He left Salsa L.A. at about 1:00 a.m. to walk home.   A man attacked Ramirez from behind outside his apartment building.   Ramirez sustained numerous stab and slash wounds in his chest, side, stomach and the back of his hands.   Stitches and staples were required to close the wounds, and Ramirez remained hospitalized for about 24 hours.

Ramirez's wallet (which contained about $20) and cell phone were stolen during the attack.   Ramirez had seen Delgado several times in the neighborhood near Salsa L.A. Ramirez was unable at trial to identify Delgado as his attacker.

3. Delgado's arrest and the police investigation

On March 11, 2008, Perez was headed into a restaurant for lunch when he spotted Delgado near Salsa L.A. Perez called the police, but Delgado left before they arrived.   Perez and a friend followed Delgado.   Perez confronted Delgado, saying, “You're the guy who robbed me, huh?”   Delgado responded, “yeah, so what?” and the two men began to fight.   The police arrived, Perez identified Delgado as the man who had robbed him the week before, and Delgado was arrested.

The police found a knife with bloodstains in Delgado's pocket.   As Delgado was being booked into jail, an officer noticed dried blood stains on his pants and shoes.   Tests revealed the blood on the knife, clothing and shoes came from Ramirez.   The police investigation led to an impounded Isuzu Trooper, registered to Myra Gonzalez at an address about three blocks from Salsa L.A. A 2007 calendar in the car's console contained the notation “Myra and Mildred.”   (Delgado's first name is Mildred.)   Testing on blood stains found on a rear door panel revealed a match with Perez's blood.

A robbery detective interviewed Delgado on the date of his arrest.3  Delgado gave the detective several versions of what transpired between himself and Perez the night Perez was robbed.   By the end of the interview, Delgado's account of the events was similar to Perez's.   Delgado said his “initial plan” had been just to rob Perez, take his wallet and get rid of him.   He stabbed Perez after Perez punched him in the face.   Delgado admitted pushing Perez out of the car while an acquaintance drove.   Delgado also admitted the knife in his possession at the time of his arrest was the one he used to rob Perez, but said the blood on his clothes and shoes must have come from stepping in a puddle of blood on the street.

Defense case

Delgado testified on his own behalf.   He testified he lived about two blocks from Salsa L.A. On the evening of March 1, 2008, Delgado saw Perez, whom he recognized from the neighborhood, and spoke to him.   Perez bought Delgado some beer at El Charo, after which Delgado headed home.   Perez stayed at the bar.   Perez and Delgado agreed Delgado would come back later, and they would go to Perez's house to drink.   Delgado returned to El Charo at about 1:30 a.m. Perez, who was very drunk, followed him out of the bar.   Outside, Delgado saw a woman he knew named “Myra” who provided taxi service, dropping off a customer.   Perez got into the car.   Delgado got a phone call and then got into the car after Perez.   Perez gave the woman his address.   The woman and Delgado were going to drop Perez off at his house.

Inside the car, Delgado saw Perez drinking a bottle of beer and told him to drink it quickly and toss out the container.   Perez told Delgado he was “a big scaredy-cat, [and] that [he] was gay.”   Delgado jumped into the back seat to calm Perez down.   Perez hit Delgado with the beer bottle.   Delgado hit Perez in the nose.   Delgado took out his knife because Perez was attacking him with the bottle, but he did not stab or try to stab Perez.   Perez ran into Delgado's knife, and wounded his own rib area.   Perez also hit himself on the door frame during his struggle with Delgado, which resulted in the injury to his face and forehead.   Delgado never intended to rob Perez.   Delgado testified he had been drunk when he was interviewed by the detective.

Delgado vaguely recalled having first told the detective he had left the bar to get something to eat, and that while he was gone his friends must have done something to Perez.   He did not recall having said that he and Perez got into a black car, or that Perez became angry and got out of the car.   Delgado remembered telling the detective he had planned to go to Perez's house to drink, that Perez insulted him and the two of them “had problems.”   Delgado did not recall telling the detective he asked Perez for money to buy beer, or that Perez believed he was being robbed and had punched him in the mouth.

Delgado denied having attacked Ramirez.   He said he must have stepped in a puddle of blood while on an early morning walk with his dog in the area near Ramirez's apartment, while it was still dark.   He did not discover blood on his clothes and shoes until later.


The detective spent about one and a half-hours with Delgado after he was taken into custody.   He did not smell alcohol on Delgado's breath, and Delgado did not appear to be intoxicated during the interview.


Delgado maintains (1) the trial court erred by failing to instruct on principles of aiding and abetting, and (2) there is insufficient evidence to support the jury's finding of great bodily injury.   Neither contention has merit.

1. Instructional error

a. Failure to instruct on aiding and abetting was harmless error

Delgado insists the trial court erred by failing, sua sponte, to instruct on principles of aiding and abetting.   Because he did not drive the car in which Perez was transported, Delgado maintains he was convicted of kidnapping without proof he either moved the victim or made him move a substantial distance by use of force or fear. (§§ 207, subd. (a), 209, subd. (a);  People v. Rayford (1994) 9 Cal.4th 1, 12–14.)   An aider and abettor is one who, by act or advice, aids, promotes or encourages the commission of a crime with knowledge of the criminal purpose of the perpetrator and with the intent to commit, encourage or facilitate the commission of the offense.  (People v. Beeman (1984) 35 Cal.3d 547, 561 (Beeman ).)

Relying on People v. Coo k (1998) 61 Cal.App.4th 1364 (Cook ), the Attorney General insists aiding and abetting instructions were not required.   In Cook, the court held that, “one who engages in conduct that is an element of the charged crime is a perpetrator, not an aider and abettor, of the completed crime․  If the defendant performed an element of the offense, the jury need not be instructed on aiding and abetting, even if an accomplice performed other acts that completed the crime.”  (Id. at p. 1371.)

As Delgado points out, in a habeas proceeding brought by the same defendant, a federal district court criticized the rule expressed in Cook as “clearly unconstitutional,” because it allows the prosecution to prove an offense by establishing a single element as to a particular defendant, “effectively removing the necessity of proving all required elements and thereby lessening the burden of proof.  (Cook v. Lamarque (E.D.Cal.2002) 239 F.Supp.2d 985, 986, 996.)   Pursuant to the Cook rule, “if a crime is completed, then the prosecution need only prove that a defendant committed one element in order for the defendant to be found guilty of the entire crime, so long as another actor committed the remaining elements.”  (Ibid.)

We decline to follow the rule articulated in Cook. Due process requires all the elements of an offense be proved against a defendant.   But Cook permits the prosecution to prove an offense by establishing one element as to a particular defendant, thereby lessening the prosecution's burden of proof.   (Cook v. Lamarque, supra, 239 F.Supp.2d at p. 996.)  “Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant's rights under both the United States and California Constitutions.”  (People v. Flood (1998) 18 Cal.4th 470, 479–480 (Flood ).)   Accordingly, the court must instruct sua sponte on general principles of law that are both closely and openly connected with the facts presented at trial, and necessary to the jury's understanding of the case.  (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman );  People v. Brown (2003) 31 Cal.4th 518, 559.)   The court's duty to instruct sua sponte arises if “ ‘there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.’  [Citation.]”  (Breverman, at p. 157.)

With respect to asportation, the elements of aggravated and simple kidnapping do not differ.   The prosecution was required to prove:  (1) the victim was unlawfully moved by use of force or fear, (2) the movement was without his consent, and (3) the movement was for a substantial distance.  (People v. Jones (2003) 108 Cal.App.4th 455, 462;  §§ 207, 209, subd. (b)(1).)   The jury was so instructed here.

While there is evidence Delgado orchestrated the kidnapping of Perez, the record does not reflect that he personally moved or caused Perez to move a substantial distance.   Consequently, Delgado could not be found guilty of kidnapping as the perpetrator.  (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89 [for conviction of an offense to be supported by sufficient evidence, there must be “substantial evidence of the existence of every element of the offense charged”].)   But under the facts here, Delgado could still be guilty as an aider and abettor if he by act or advice, aids, promotes or encourages the commission of a crime with knowledge of the criminal purpose of the perpetrator and with the intent to commit, encourage or facilitate the commission of the offense.  (Beeman, supra, 35 Cal.3d at p. 561.)   Substantial evidence supports this theory.   Delgado and his female associate waited for Perez outside the bar at closing time.   Delgado grabbed Perez by the shoulder, ushering him into the waiting car driven by the woman who echoed Delgado's invitation to Perez to join them drinking or to accept their offer of a ride.   The woman then proceeded to drive a block or so, stopped to allow Delgado to climb into the back seat with Perez, and immediately locked the doors to prevent Perez from escaping.   She then drove on silently while Delgado robbed and stabbed Perez, and drove off with Delgado after he pushed Perez from the vehicle.   In light of this evidence, and the lack of evidence Delgado actually transported Perez a substantial distance, the trial court was required to instruct sua sponte on aiding and abetting.   Its failure to do so was error.

Failure to instruct upon an element of the offense is subject to harmless error analysis under the standard articulated in Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman ).  (People v. Sakarias (2000) 22 Cal.4th 596, 624–625;  Neder v. United States (1999) 527 U.S. 1, 8–9 [119 S.Ct. 1827, 144 L.Ed.2d 35].)   Accordingly, the error was harmless if it appears beyond a reasonable doubt that it did not contribute to the jury's verdict.  (Chapman, supra, 386 U.S. at p. 24;  People v. Cox (2000) 23 Cal.4th 665, 677, fn. 6.) An error under the California Constitution is subject to review under the standard of People v. Watson (1956) 46 Cal.2d 818.  (Flood, supra, 18 Cal.4th at p. 490.)

Here, reviewed under the more stringent Chapman standard, the error was harmless.   The jury was instructed on the elements of an aggravated kidnapping and as to the reasonable doubt standard.   The evidence established Delgado waited for Perez and insisted he get into a waiting car driven by Delgado's acquaintance, according to a preconceived plan.   According to that plan, the jury could readily infer the driver both planned to transport Perez and to ensure he remained in the car while Delgado robbed and stabbed him.   The woman locked the rear doors to keep Perez inside, without being instructed by Delgado to do so, using a child-lock mechanism typically available only to the driver.   She then continued silently to drive on while Delgado attacked and robbed Perez;  the driver voiced no concern or shock and did not come to Perez's aid.   These facts are strong indicators she was not only aware of Delgado's intention to rob Perez, but shared the same intention and facilitated the robbery cooperating with Delgado to execute a preconceived plan that included asportation of the victim.   On this record it is clear beyond a reasonable doubt a rational jury would have found Delgado guilty of kidnapping had aiding and abetting instructions been given.

b. No instructional error as to false imprisonment

The crime of false imprisonment requires proof of (1) nonconsensual, (2) intentional and unlawful restraining or confining of a person, (3) for an appreciable amount of time, no matter how short, (4) accomplished by violence or menace.  (Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1000–1001.)   False imprisonment is a lesser included offense of kidnapping.  (People v. Magana (1991) 230 Cal.App.3d 1117, 1120–1121.)   Both offenses require a nonconsensual detention or confinement of the victim.   But, unlike kidnapping, false imprisonment does not include the element of asportation.   Delgado asserts his kidnapping conviction must be reversed because the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of false imprisonment.

“ ‘ “[A] trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.” ’   [Citations.]  Conversely, even on request, the court ‘has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.’ ”  (People v. Cole (2004) 33 Cal.4th 1158, 1215;  see also Breverman, supra, 19 Cal.4th at p. 154.)  “[A] trial court need not instruct [on lesser] offenses unless the evidence would justify a conviction of such offenses.”  (People v. Turner (1983) 145 Cal.App.3d 658, 679, disapproved on other grounds in People v. Majors (1998) 18 Cal.4th 385, 411.)   The court need not instruct regarding lesser included offenses if the evidence is such that the defendant, if guilty of any offense, is guilty of the greater offense.  (People v. Kelly (1990) 51 Cal.3d 931, 959;  People v. Ordonez (1991) 226 Cal.App.3d 1207, 1233 [Instruction on a lesser included offense of false imprisonment is not necessary where the evidence does not support a conclusion that the lesser rather than the greater offense of kidnapping was committed.].)

The only element of kidnapping not required for false imprisonment is asportation.   As discussed above, substantial evidence established that the requirements for asportation were met here and the crime of kidnapping was complete.   On this record, there is no evidence from which the jury could conclude that appellant merely restrained Perez (false imprisonment) without also finding that his actions constituted kidnapping.   The evidence showed that Delgado and the driver acted in concert to move Perez a substantial distance to rob him.

We note also that the trial court did raise the issue of whether an instruction on false imprisonment was warranted in this case.   Both Delgado's counsel and the prosecutor readily agreed no instruction regarding false imprisonment was in order on these facts;  the trial court agreed and none was given.

2. Great bodily injury

Delgado maintains that, on this evidentiary record, “no rational trier of fact could have found that Perez's injuries constituted ‘great bodily injury,’ ” i.e., a “significant or substantial physical injury.” (§ 12022.7, subd. (f);  People v. Cross (2008) 45 Cal.4th 58, 63.)

“ ‘It is well settled that the determination of great bodily injury is essentially a question of fact, not of law.  “ ‘Whether the harm resulting to the victim ․ constitutes great bodily injury is a question of fact for the jury.  [Citation.]  If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.’ ” '   [Citation.]”  (People v. Mendias (1993) 17 Cal.App.4th 195, 205.)

The term great bodily injury has long been accepted as commonly understandable to jurors.   It is not a technical term requiring further elaboration.   (People v. La Fargue (1983) 147 Cal.App.3d 878, 886–887.)  “It is well settled that the determination of great bodily injury is essentially a question of fact, not of law.  “ ‘ “Whether the harm resulting to the victim ․ constitutes great bodily injury is a question of fact for the jury.   [Citation.]  If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.” ’  [Citations.]”  (People v. Escobar (1992) 3 Cal.4th 740, 750, fn. omitted.)

“Abrasions, lacerations, and bruising can constitute great bodily injury.   [Citation.]”  (People v. Jung (1999) 71 Cal.App.4th 1036, 1042.)   Injuries that are “trivial, insignificant or moderate” and result in “transitory and short-lived bodily distress” do not rise to the level of “significant or substantial” injuries constituting great bodily injury.  (People v. Caudillo (1978) 21 Cal.3d 562, 588, overruled on another ground in People v. Martinez (1999) 20 Cal.4th 225, 229.)  “ ‘A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.   Clearly, it is the trier of fact that must in most situations make the determination.’  [Citations.]”  (Escobar, supra, 3 Cal.4th at p. 752.)

Delgado's argument that the wounds Perez sustained to his eyebrow and under his arm are only “minor cuts” insufficient to establish great bodily injury is an unwarranted minimization of the nature and severity of the injuries he inflicted.   Perez did not sustain paper cuts.   Rather, he testified he was punched and stabbed repeatedly, and sustained painful lacerations in his eyebrow and ribcage areas that bled causing him briefly to lose consciousness, and causing permanent scars in both places (which were displayed to the jury).   When Perez's neighbors saw the immediate aftermath of the assault, they were so alarmed they summoned the police, who in turn called paramedics.   Perez required overnight treatment in the hospital.   There was no testimony regarding the duration of his injuries or the extent of any impairment.   To be sure, there was no corroborating testimony by police officers or medical personnel describing the injuries or any residual effects.   However, there was also no challenge raised to Perez's testimony regarding the nature or extent of the injuries he sustained.   Perez's unchallenged testimony, coupled with the evidence viewed by the jury was sufficient to support the jury's conclusion that he sustained significant and substantial injury.

Loss of consciousness has been described as sufficient to indicate great bodily injury.  (People v. Kent (1979) 96 Cal.App.3d 130, 136.)   Also, multiple contusions, swelling and discolorations on a child's body were enough to satisfy the definition of great bodily injury.  (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836–837.)   Here, the prosecutor could have done a better job of eliciting a description of the injury, for example, length and depth of the knife wounds and whether there were any residual effects of the injuries.   Still, as in Jaramillo, “while the issue might be close it appears that there were sufficient facts upon which the court could base its finding of great bodily injury and such a finding therefore will not be disturbed on appeal.”  (Id. at p. 836.)   The victim's testimony and the physical evidence were sufficient to allow a jury to conclude that great bodily injury was inflicted within the meaning of section 12022.7.



We concur:


FN1. Statutory references are to the Penal Code..  FN1. Statutory references are to the Penal Code.

FN2. We view the evidence in accordance with the usual rules on appeal.   (People v. Snow (2003) 30 Cal.4th 43, 66.).  FN2. We view the evidence in accordance with the usual rules on appeal.   (People v. Snow (2003) 30 Cal.4th 43, 66.)

FN3. The interview was recorded and transcribed, but the recording was not played for the jury..  FN3. The interview was recorded and transcribed, but the recording was not played for the jury.