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Court of Appeal, Fifth District, California.

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


Decided: August 23, 2011

Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.



A jury convicted appellant Vincent Delgado of aggravated mayhem and assault with a deadly weapon.   A jury also found true that the crimes were committed for the benefit of a criminal street gang and that Delgado personally inflicted great bodily injury on the victim.   Delgado contends the evidence was insufficient to support the aggravated mayhem conviction and the gang enhancement.   He also claims the trial court erred in admitting into evidence the statement of the victim made after the assault.   We disagree and affirm the judgment.


In March 2009, Delgado, Rolando Jaramillo, Juan Gomez Pizano, Richard Fernandez, and Jorge Verduzco were in custody in the Tulare County jail.   Delgado and Verduzco were assigned to the same cell within module No. 41.

The module to which Verduzco and Delgado were assigned was a general population module, but primarily housed those claiming an affiliation with Nortenos.   When an inmate is booked, the inmate is interviewed regarding gang affiliation in order to minimize danger from rival gangs.   Delgado was a self-identified Norteno;  Pizano, Jaramillo, and Fernandez had been classified as Nortenos.

On March 20, 2009, Tulare County Sheriff's Deputy Sarah Torres was in the control booth monitoring module Nos. 41 and 42.   Delgado, Pizano, Fernandez, Jaramillo, and Verduzco were in the common area of module No. 41.   Fernandez left and went upstairs.

Someone called Verduzco over to the area by cell No. 103.   Delgado approached Verduzco as Verduzco neared the cell.   Delgado, Pizano, and Jaramillo attacked Verduzco.   Delgado cut Verduzco's face and called Verduzco a snitch.

Fernandez and Torres heard loud screaming.   Torres saw two inmates attacking Verduzco, with another inmate standing near where the attack was taking place.   Through the intercom, Torres ordered the inmates to halt and lie down on the floor, but they continued the attack.   Torres alerted other deputies of the fight in progress and opened the sally port so deputies could enter the module.

Verduzco managed to break away and ran up the stairs;  Delgado, Pizano, and Jaramillo followed him.   On the upper level, Verduzco ran toward Fernandez;  Fernandez saw blood on Verduzco's face.   Fernandez joined Delgado and the others pursuing Verduzco;  they followed Verduzco downstairs to the main level.   At the bottom of the stairs, the men continued their assault on Verduzco.

Deputy Sheriff Duston Gagnon entered module No. 41 through the sally port and saw Delgado, Pizano, and Jaramillo attacking Verduzco.   With the arrival of two other deputies, Delgado and the others complied with orders to lie down on the floor.

Verduzco was bleeding profusely and had blood on his face and torso.   Deputies saw blood on Delgado's pants and shoes;  his hands were reddish in color and slightly swollen.

Gagnon asked Verduzco about the attack.   Verduzco told Gagnon that his cellmate had cut him with a blade.   Verduzco also stated that he had been hit multiple times with fists and kicked in the head by more than one inmate.   The cut on his face required six stitches to close.

On December 1, 2009, Delgado was charged with aggravated mayhem and assault with a deadly weapon.   It also was alleged that the offenses were committed for the benefit of a criminal street gang, as described in Penal Code section 186.22, subdivision (b)(1),1 and that Delgado personally inflicted great bodily injury.

At trial, Verduzco denied being a member of the Norteno gang or dropping out of the gang.   He acknowledged his cousin was a Norteno.

Sheriff's Detective Mike Yandell had extensive training and experience dealing with criminal street gangs.   Yandell testified as a gang expert.   Yandell opined that Norteno gang members would exercise control over who stayed in a jail module through assaults and stabbings.   Yandell had investigated more than 12 prior jail attacks involving the same type of wound inflicted upon Verduzco.   The wound, which was a slice on the face from the top of the ear to the bottom of the chin, was called a “puto mark,” “rat mark,” or “bitch mark.”   The scar resulting from the wound would allow other Nortenos to identify the victim as someone not to be trusted.

Yandell first made contact with Delgado on April 19, 2008, at which time Delgado admitted membership in the Norteno gang.   Yandell also opined that Pizano and Jaramillo were Norteno gang members, but that Fernandez had changed status and no longer was an active member.   In responding to a hypothetical where a victim of an assault in a jail was called a snitch and was cut with the rat mark, Yandell opined that the assault would be gang related.

Defense investigator Don McDonald interviewed Verduzco prior to the start of trial.   At that time, Verduzco claimed he did not know who had cut him and that he would not testify at Delgado's trial.

A jury found Delgado guilty of both charges and made true findings on the special allegations.   The trial court sentenced Delgado to 15 years to life in prison.


I. Sufficiency of the Evidence

Delgado contends the evidence was insufficient to support the conviction for aggravated mayhem and the true finding on the gang enhancement.   We disagree.

“In reviewing the sufficiency of the evidence to support a conviction, we determine ‘ “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.”  [Citations.]’  [Citation.]   Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime.  [Citations.]  The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusions.   [Citations.]  [¶] In making the determination, we do not reweigh the evidence;  the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact.  (Evid.Code, § 312.)   We simply consider whether ‘ “ ‘any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt.’ ”  [Citations.]'  [Citation.]   Unless it is clearly shown that ‘on no hypothesis whatever is there sufficient substantial evidence to support the verdict’ the conviction will not be reversed.  [Citation.]”  (People v. Quintero (2006) 135 Cal.App.4th 1152, 1161–1162 (Quintero ).)

If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances also might be reconciled reasonably with a contrary finding.  (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)  “The standard is the same, regardless of whether the prosecution relies mainly on direct or circumstantial evidence.  [Citation.]”  (People v. Vazquez (2009) 178 Cal.App.4th 347, 352.)

The standard of review for sufficiency of the evidence of a substantive offense is also the standard applicable to reviews of the sufficiency of the evidence to support a gang enhancement finding.  (People v. Villalobos (2006) 145 Cal.App.4th 310, 321–322 (Villalobos ).)

Aggravated mayhem

Delgado contends the evidence was insufficient to sustain the aggravated mayhem conviction because there was no specific intent to maim, as demonstrated by the lack of any prior conflict between Delgado and Verduzco, and this was simply a random attack.   Delgado is mistaken;  evidence of specific intent to maim was present.

Section 205 provides:  “A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body.   For purposes of this section, it is not necessary to prove an intent to kill․”

Specific intent to maim is an essential element of aggravated mayhem. (§ 205;  Quintero, supra, 135 Cal.App.4th at p. 1167.)  “[S]pecific intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem;  instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately.  [Citation.]”  (People v. Ferrell (1990) 218 Cal.App.3d 828, 835 (Ferrell ).)   Such intent may be inferred, however, “ ‘from the circumstances attending an act, the manner in which it is done, and the means used, among other factors.’  [Citation.]”  (Quintero, at p. 1162.)   For example, evidence that a defendant's attack was aimed at a vulnerable part of the victim's body, such as his or her head, supports an inference that the defendant specifically intended to cause a maiming injury.   (Ibid.;  People v. Park (2003) 112 Cal.App.4th 61, 69 (Park ).)

In People v. Sears (1965) 62 Cal.2d 737, 740–741, 745, overruled on another ground by People v. Cahill (1993) 5 Cal.4th 478, 509–510, footnote 17, the court held that the evidence was insufficient to establish specific intent to maim when the defendant attacked his estranged wife with a steel pipe and then struck his stepdaughter with the pipe when she tried to intervene, causing a laceration to the stepdaughter's lip and nose.   The court stated that the evidence showed only an indiscriminate attack rather than an intent to maim the stepdaughter.

In contrast, in Park, supra, 112 Cal.App.4th 61, the defendant, convicted of aggravated mayhem, had sat down with fellow gang members next to a rival gang at a restaurant and the two groups exchanged stares.   The defendant aimed for the victim's head, but hit the victim's arm three or four times with the weapon while the victim used his arm to block the blow.   With a final blow, the defendant hit the victim's mouth, resulting in eight broken teeth and profuse bleeding.  (Id. at p. 65.)   The court found specific intent to maim because the attack was not indiscriminate, the defendant aimed at an extremely vulnerable part of the victim's body, and he stopped his attack once he had maimed him.   Also considered by the court was the defendant's choice of weapon, a steel weapon instead of his fists.  (Id. at pp. 69–70.)

In Ferrell, supra, 218 Cal.App.3d 828, the defendant, convicted of both attempted second degree murder and aggravated mayhem, arrived at the victim's apartment and then shot the victim in the neck from a distance of about two feet.   The bullet severed the victim's spine and resulted in severe partial paralysis.  (Id. at pp. 831–832.)   The court concluded the evidence of intent to maim was sufficient when the defendant shot the victim in the neck at close range, causing her to become permanently paralyzed, because such a shot was highly likely to disable permanently and because the attack was directed and controlled.  (Id. at pp. 833–836.)

In Quintero, supra, 135 Cal.App.4th 1152, the defendant focused a knife attack on the victim's head, stopping after maiming the victim's face.  (Id. at p. 1163.)   This was held to be sufficient evidence of specific intent to maim.  (Ibid.) In People v. Szadziewicz (2008) 161 Cal.App.4th 823 (Szadziewicz ), evidence of an attack with a knife directed at the victim's face was sufficient to show specific intent to maim.  (Id. at pp. 831–832.)

The present case has important similarities to Park, Ferrell, Quintero, and Szadziewicz.   Viewed in the light most favorable to the judgment, the evidence was more than sufficient to establish that Delgado had the specific intent to maim, regardless of any history or lack thereof of prior confrontations between Verduzco and him.   Verduzco was Delgado's cellmate.   Verduzco was called over to cell No. 103, where Delgado and two others were waiting for him.   As Verduzco approached the cell, Delgado and two others attacked him, cut Verduzco's face apparently with a blade, and called him a snitch.   The cut on Verduzco's face required six stitches to close.   Yandell testified that the mark cut into Verduzco's face was called a puto mark, rat mark, or bitch mark and the wound and resulting scar were used to identify people the Norteno gang did not trust.

The attack on Verduzco was not a random attack;  Verduzco was targeted.   The attack was not spontaneous;  it was well planned.   Verduzco deliberately was called toward cell No. 103, allowing Delgado and two others to attack him.   One of the first injuries inflicted on Verduzco was the distinctive cut to his face to mark him as a snitch, which Delgado had labeled him.   Delgado attacked Verduzco with a blade, which required planning on Delgado's part in order to obtain possession of the blade while incarcerated.   Delgado apparently was indifferent to the pain he was inflicting on Verduzco to the extent that he refused orders to cease and desist until after he had finished cutting Verduzco's face.

The jurors were entitled to infer, from all of the evidence presented and circumstances of the attack, that Delgado specifically intended to maim Verduzco by cutting his face.   We reject his claim to the contrary.

Gang enhancement

Establishing the truth of the section 186.22, subdivision (b) gang allegation requires a two-part showing.  (Villalobos, supra, 145 Cal.App.4th at pp. 321– 322.)   The prosecution must establish the underlying crime was “committed [ (1) ] for the benefit of, at the direction of, or in association with any criminal street gang, [and (2) ] with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)

Delgado's challenge is directed at the first prong of section 186.22, subdivision (b)(1).   He argues the evidence was insufficient to establish the section 186.22, subdivision (b) enhancement because the instant offenses were not committed for the benefit of a criminal street gang.   This contention ignores the language of the statute, which requires that the offense be committed in association with a criminal street gang or for the benefit of a criminal street gang.

There rarely is direct evidence that an offense was committed for the benefit of a criminal street gang and triers of fact routinely draw inferences from the facts and circumstances surrounding the offense.  (People v. Margarejo (2008) 162 Cal.App.4th 102, 110.)   A series of cases have found substantial evidence to support gang enhancements in cases where gang members commit offenses with fellow gang members, since such conduct satisfies the statutory requirement that the offenses must be committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1), italics added;  see also People v. Morales (2003) 112 Cal.App.4th 1176, 1197–1198 (Morales );  People v. Romero (2006) 140 Cal.App.4th 15, 19–20 (Romero );  People v. Martinez (2008) 158 Cal.App.4th 1324, 1332–1333.)

The California Supreme Court recently decided People v. Albillar (2010) 51 Cal.4th 47 (Albillar ), addressing the section 186.22, subdivision (b) gang enhancement.   In Albillar, the defendants sexually assaulted the victim inside an apartment;  the three gang members who committed the crimes were related to each other.  (Albillar, at p. 51.)   There was no gang graffiti left in the apartment and no throwing of gang signs.  (Id. at pp. 51–53.)

The California Supreme Court concluded the evidence was sufficient to support a finding that the crimes met the first prong of section 186.22, subdivision (b)(1) because the crimes were committed in association with the gang:  “Defendants not only actively assisted each other in committing these crimes, but their common gang membership ensured that they could rely on each other's cooperation in committing these crimes and that they would benefit from committing them together.”  (Albillar, supra, 51 Cal.4th at pp. 61–62.)   By committing crimes together, gang members increase their status among those participating in the crimes and among the entire gang.  (Id. at p. 61.)

Section 186.22, subdivision (b)(1) requires that the offense be committed for the benefit of a criminal street gang or in association with any criminal street gang.   Here, Delgado committed the crimes in association with fellow gang members, Pizano, Jaramillo, and Fernandez.   Consequently, Delgado committed the crimes in association with a criminal street gang.  (Albillar, supra, 51 Cal.4th at pp. 61–62;  Morales, supra, 112 Cal.App.4th at pp. 1197–1198.)

We also believe the evidence established that Delgado committed this offense specifically to benefit his gang.   Delgado attacked Verduzco and specifically cut the rat mark into his face, which a reasonable juror could infer was done to benefit Delgado's Norteno gang because it marked Verduzco as someone the gang members should not trust.

The second prong of section 186.22, subdivision (b)(1) also is satisfied.   When it is demonstrated that a gang member intended to commit the current offense, intended to commit the offense in association with another person, and knew the other person to be a member of his gang, then the specific intent requirement of section 186.22, subdivision (b)(1) has been met.   (Villalobos, supra, 145 Cal.App.4th at p. 322.)

In People v. Leon (2008) 161 Cal.App.4th 149, the defendant and an accomplice were members of the same gang;  they stole a car and threatened an eyewitness.   The defendant argued there was insufficient evidence that he committed the offenses for the benefit of his gang.  Leon relied on Morales and Romero and rejected this argument because “a ‘specific intent to benefit the gang is not required.’  [Citation.]”  (Leon, at p. 163.)

As the court stated in Albillar, the specific intent requirement “is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought to be enhanced.”  (Albillar, supra, 51 Cal.4th at p. 66.)

We conclude there was ample evidence that Delgado's attack on Verduzco satisfied the requirements of section 186.22, subdivision (b)(1).

II. Admission of Statement

Delgado contends the trial court erred in admitting Verduzco's out-of-court statement to law enforcement personnel as a spontaneous statement pursuant to Evidence Code section 1240.   Delgado claims the admission was erroneous because the statement did not qualify as an exception to the hearsay rule and its admission violated his constitutional rights.

A trial court's evidentiary ruling admitting hearsay statements is reviewed for abuse of discretion.  (People v. Lynch (2010) 50 Cal.4th 693, 752.)   We conclude the trial court did not abuse its discretion in admitting Verduzco's statement.

As an appellate court, we review judicial action, not judicial reasoning.   (City of National City v. Wiener (1992) 3 Cal.4th 832, 850 (conc. opn. of Baxter, J.) [well-settled principle of appellate review that correct decision of trial court must be upheld even if based on erroneous reasoning].)   If the ultimate result arrived at by the trial court is correct on any theory of the law relevant to the case, it must be affirmed.  (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329;  Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn. 1.)

Prior inconsistent statement

Although the trial court refused to admit the statement as a prior inconsistent statement, the statement could have been admitted under that exception to the hearsay rule.   While failure of recollection does not automatically render the conversation admissible as a prior inconsistent statement, under certain circumstances it will.  “ ‘Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event.’ ”  (People v. Ervin (2000) 22 Cal.4th 48, 84.)   Inconsistency will not be implied unless a witness's claim of lack of memory amounts to deliberate evasion.  (Ibid.)

To admit the prior statement, there must be a “reasonable basis in the record for concluding that the witness's ‘I don't remember’ statements are evasive and untruthful.”  (People v. Johnson (1992) 3 Cal.4th 1183, 1219–1220.)   Here, Verduzco admitted he told a defense investigator prior to trial that he did not want to testify or participate in the trial.   At trial, Verduzco admitted he did not want to be on the stand testifying.   While testifying, Verduzco had a failure of recollection as it pertained to Delgado's role in the attack.   The trial court reasonably could have found Verduzco was being evasive or untruthful when he testified he could not remember.

Spontaneous statement

As we conclude the statement was admissible as a prior inconsistent statement, we do not have to decide the statement's admissibility as a spontaneous statement.   We also need not address Delgado's claim that its erroneous admission adversely affected his constitutional rights.


The judgment is affirmed.

CORNELL, Acting P.J.





FN1. All further statutory references are to the Penal Code unless otherwise stated..  FN1. All further statutory references are to the Penal Code unless otherwise stated.