(Super. Ct. No. CRF09945) APPEAL from a judgment of the Superior Court of Yolo County, Stephen L. Mock, Judge.
The opinion of the court was delivered by: Mauro , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant Antonio Mason Delgado of attempted murder, mayhem, second degree robbery, assault by means of force likely to cause great bodily injury, conspiracy to commit a felony, and criminal street gang activity. The jury also found that defendant committed the crimes for the benefit of a criminal street gang, and that he personally inflicted great bodily injury which caused the victim to become comatose due to brain injury. The trial court sentenced defendant to 28 years 4 months in state prison.
Defendant contends (1) his conviction for attempted murder must be reversed because the evidence is insufficient to prove that he harbored the specific intent to kill, or that he aided and abetted attempted murder; (2) there is insufficient evidence that he committed the charged crimes for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)*fn2 ; (3) he was denied due process when evidence of a prior bad act was presented to the jury, despite the trial court's prior ruling excluding the evidence; (4) there is insufficient evidence to support the great bodily injury enhancement because there is no substantial evidence that the victim became comatose due to brain injury, as required by section 12022.7, subdivision (b); and (5) alternatively, there is insufficient evidence to support the great bodily injury enhancement because there is no substantial evidence that defendant personally inflicted great bodily injury.
In the published portion of our opinion, we agree with defendant that there is insufficient evidence to support the great bodily injury enhancement because there is no substantial evidence that the victim became comatose due to brain injury, as required by section 12022.7, subdivision (b).
In the unpublished portion of our opinion, we conclude there is substantial evidence that defendant harbored the specific intent to kill the victim, and that he aided and abetted his cohort in committing the other charged crimes, the natural and probable consequences of which was attempted murder; there is substantial evidence that the beating was committed for the benefit of defendant's criminal street gang; admission of the prior bad act evidence was not prejudicial error; and because we agree with defendant that there is insufficient evidence to support the great bodily injury enhancement, it is not necessary to address his alternative contention that there is insufficient evidence that he personally inflicted great bodily injury.
We will strike the great bodily injury (§ 12022.7, subdivision (b)) enhancement. In all other respects, we will affirm the judgment. We will also direct the trial court to correct a typographical error in the abstract of judgment.
David Eid was driving on West Capitol Avenue in West Sacramento around 3:00 a.m. on January 21, 2009, when he saw three men engaged in what he thought was horseplay. As he drove by, however, it looked like it was getting excessive because one of the men was down on the ground and the others were hitting him. Eid looked in his rearview mirror and saw the two men viciously punching and kicking the man on the ground. One man was at the victim's feet and was kicking him in the lower body and crotch. The other man was at the victim's head, "doing more of the beating on the head" and "really working on him." The men were kicking the victim and appeared to be enjoying it.
Eid made a U-turn and drove back. The victim was not moving, appeared to be "out cold," and the two men were hitting and kicking him around like a "rag doll." It was "pretty brutal" and they were "giving it all they had." The attack was not constant; the men would step back, then kick and hit the victim again. Eid gunned his engine and when the men saw that Eid was going to stop his truck, they took off running. Eid did not get a good look at their faces, but one man, who was wearing a baseball cap, had a look of defiance.
Eid called 9-1-1 and told the dispatcher that the victim, later identified as Jacques Harpst, was "having a hard time breathing," was "gurgling," and was "not responsive." Harpst's pockets were pulled out and Eid thought the two men "might have rolled him."
Officer Jack Hatton responded to the scene. Harpst was bleeding profusely from his mouth and nose, and both of his eyes were swollen to the size of golf balls. Harpst made gurgling sounds as he tried to breathe. Hatton suspected defendant, who lived a block away, was involved. A subsequent investigation proved that his suspicions were correct, and that defendant's accomplice was Michael Romero.
Harpst, age 48, did not recall the beating but remembered waking up in the hospital and being there for several months. Harpst was in the neurosurgery intensive care unit at UC Davis Medical Center. According to his brother Michael, Harpst was not "conscious" when Michael first came to visit him in the hospital, and Harpst had tubes down his throat. Michael remembered Harpst becoming "conscious" a couple weeks after the attack, when Harpst began moving his eyes and arms and began fighting to get out of his restraints. According to Michael, the beating altered Harpst's memory, hearing, sense of smell and ability to use a computer.
Dr. David Shatz, a trauma surgeon, was one of the healthcare providers who treated Harpst. A trauma surgeon takes care of the most severely injured patients, and when certain criteria are met, paramedics take a patient directly to a trauma center rather than a standard emergency room. Dr. Shatz saw Harpst when he first arrived, and based on a review of Harpst's medical charts, Dr. Shatz testified that Harpst had facial fractures and "a depressed mental status."
Dr. Shatz described the Glasgow Coma Scale, which physicians use to grade degrees of brain impairment. The Glasgow Coma Scale takes into account three aspects: the ability to move, the ability to speak, and the ability to move one's eyes around. The worst score a person can have is one point in each of the three categories, a Glasgow Coma Scale score of 3. A person with a score of 3 is "totally comatose." According to Dr. Shatz, a dead body would have a score of 3. The best possible score, the score for a normal healthy person, is a score of 15. A drunk person would likely score a 14. A score of 8 means the brain is severely injured and the person cannot protect his or her airway from aspirating vomit.
Dr. Shatz said Harpst scored a 9 on the Glasgow Coma Scale, which reflected a severe brain injury. Because of the severe injury, doctors opted to intubate him to protect his airway. When the prosecutor asked Dr. Shatz if it was fair to say in laymen's terms that Harpst was comatose, the doctor replied, "I will stick with the scale." Harpst remained on a ventilator for a few days, and was in the intensive care unit for a month. Dr. Shatz testified that Harpst was "conscious" during the month he was in the intensive care unit, but Harpst was unable to push the nursing button for assistance.
Detective Warren Estrada interviewed defendant's girlfriend, Vanessa Ramos, and a recording of the interview was played for the jury. Ramos also testified at trial, although she was less forthcoming than in her interview with Estrada. Ramos identified Romero as the man who was with defendant when Harpst was beaten. She stated that defendant had been a member of the Red Nose Pittz, a Norteno gang, for a number of years. The Red Nose Pittz liked to jump people. In fact, defendant's brother was locked up for assaulting a light rail inspector. Ramos stated the gang will beat up whoever "talks shit to [th]em" or happens to walk by when the gang members are drunk.
On the night in question, Ramos was with defendant, Romero and Erica Raya at Raya's apartment. Defendant was wearing a cap and a white jacket, and Romero had on a dark jacket. Defendant and Romero walked to Del Taco and returned about 1:00 a.m. They all sat around talking and then the two men left to "bum a cigarette" off someone. Defendant and Romero returned around 2:00 or 3:00 a.m. Romero was out of breath and immediately went into the bathroom ...