P. v. Candelario and Hernandez
Filed 8/2/12 P. v. Candelario and Hernandez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
HERIBERTO CANDELARIO AND BRIAN STEVE HERNANDEZ,
Defendants and Appellants.
2d Crim. No.
B233424
(Super. Ct.
No. BA369519)
(Los
Angeles County)
Heriberto
Candelario and Brian S. Hernandez appeal from the judgments entered following
their conviction of attempted murder
(Pen. Code, §§ 664, 187, subd. (a)),
assault with a deadly weapon (§ 245, subd. (a)(1)), and aggravated
mayhem. (§ 205.) As to attempted murder and assault with a
deadly weapon, the jury found true an allegation that appellants had personally
inflicted great bodily injury. (§ 12022.7, subd. (b).) As to attempted murder, the jury found true
an allegation that appellants had personally used a knife. (§ 12022, subd. (b)(1).) The jury found not true an allegation that
the attempted murder had been committed deliberately and with premeditation. For aggravated mayhem, appellants were
sentenced to life imprisonment with the possibility of parole. Sentences for attempted murder and
pursuant to section 654.
Hernandez contends that the
trial court erroneously denied his section 1118.1 motion for a judgment of
acquittal on the aggravated mayhem charge.
Candelario contends that the evidence is insufficient to support his conviction
of this offense. We affirm, except that
we modify Hernandez's judgment of conviction to award him one additional day of
presentence custody credit.
Arnulfo
B., who was in the ninth grade, was walking home from school when appellants
approached him. Hernandez stood in front
of Arnulfo B., while Candelario stood behind him. Appellants "started beating"
Arnulfo B. He "felt a sharp
pain" in the back of his neck and fell to the ground. Arnulfo B.'s legs were numb, and he was
unable to get up. While he was on the
ground, appellants continued to beat him.
Arnulfo B. estimated that he was struck about 30 times. Appellants then ran away.
A
witness testified that she had seen two boys "hitting" a "little
boy" who was on the ground. Both
boys were making stabbing motions toward the "little boy's"
back. She did not see the attackers'
faces.
Arnulfo
B. had three stab wounds on the back of his neck at the base of his head. In addition, he had 16 stab wounds starting
at the base of the back of his neck and continuing down his spine to his lower
back. He showed the scars to the
jury.
The
stab wounds injured Arnulfo B.'s spinal cord.
The injury is permanent but "incomplete so he has some
functions." He was in a wheelchair
when he testified. A doctor opined that
Arnulfo B. will "always have some form of paralysis." The doctor noted that not all of the stab
wounds "directly hit the spine," but there was [sic] a couple of areas that were seriously injured." The doctor told Arnulfo B. that he was
"very lucky" because one of the stab wounds was "right at the
cervical area . . . in the neck area.
Had it . . . injured that level, he would be a quadriplegic." The major spinal cord injury was at the
thoracic (chest) area.
Hernandez contends that the trial court erroneously denied
his section 1118.1 motion for a judgment of acquittal on the aggravated mayhem
charge. Candelario contends that the
evidence is insufficient to support his conviction of this offense. "The standard
applied by the trial court under section 1118.1 in ruling on a
same as the standard applied by an appellate court in reviewing the sufficiency
of the evidence to support a conviction.
[Citation.] 'In reviewing a
challenge to the sufficiency of the evidence, we do not determine the facts
ourselves. Rather, we "examine the
whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence—evidence that is reasonable, credible and of
solid value—
trier of fact could find the defendant guilty beyond a reasonable
doubt." [Citations.] We presume in support of the judgment the
existence of every fact the trier reasonably could deduce from the evidence.
[Citation.] . . . We do not reweigh evidence or reevaluate a witness's
credibility. [Citation.]' [Citation.]" (People
v. Whisenhunt (2008) 44 Cal.4th 174, 200.)
Appellants argue that the evidence of
aggravated mayhem is insufficient because it fails to establish a specific
intent to permanently disable the victim.
"[A] conviction of aggravated mayhem require[s] proof that
appellant[s] intentionally . . . caused another person to sustain permanent
disability or disfigurement." (
Cal.App.3d 828, 833.) "There is
insufficient evidence of specific intent to maim if a defendant merely
indiscriminately attacks his victim.
[Citations.]" (
Cal.App.3d 1653, 1668.)
"Furthermore, specific 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, supra, 218 Cal.App.3d
at p. 835.)
Candelario argues that "the
evidence shows no more than a sudden, indiscriminate, and unfocused battering
of [Arnulfo B.'s] body." Hernandez
similarly argues that "the attack here was an indiscriminate attack
against [Arnulfo B.]." We
disagree. "The evidence did not
show an indiscriminate random attack on the victim's body . . . ; instead, the
attack was directed, controlled, and of focused or limited scope. [Citation.]
(People v. Lee (1990) 220
Cal.App.3d 320, 326.) Appellants
inflicted 19 stab wounds starting at the back of Arnulfo B.'s neck and
continuing down his
spine to his lower back. Based on the
number and location of the stab wounds, "the jury
could reasonably have inferred that appellant[s] intended both to kill [Arnulfo
B.], and, if [he] did not die, to disable [him] permanently." (People
v. Ferrell, supra, 218 Cal.App.3d
at p. 836.) "It takes no special
expertise to know that [stab wounds] in the [back of the] neck [and down the
spine] . . . , if not fatal, [are] highly likely to disable
permanently." (Id., at
p. 835.) Substantial evidence,
therefore, supports the jury's verdict.
Served
The trial court gave Hernandez
credit for 493 days of presentence custody (429 days of actual custody plus 64
days of conduct credit). Hernandez
contends, and the People concede, that he is entitled to credit for 494 days of
presentence custody (430 days of actual custody plus 64 days of conduct
credit). We accept the People's concession.
Candelario's judgment of
conviction is affirmed. Hernandez's
judgment of conviction is modified to award him credit for 494 days of
presentence custody (430 days of actual custody plus 64 days of conduct
credit). In all other respects, the
judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment for Hernandez and to send a
certified copy to the Department of
Corrections and Rehabilitation.
NOT TO
BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Frederick
N. Wapner, Judge
Superior
Court County of Los Angeles
______________________________
Marilyn Drath, under
appointment by the Court of Appeal, for Herberto Candelario, Defedant and
Appellant.
Linda Acaldo, under
appointment by the Court of Appeal, for Brian Steve Hernandez, Defendant and
Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Linda C. Johnson, Supervising
Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal
Code.
