Opinion
C064571
02-05-2013
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO MASON DELGADO, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
CERTIFIED FOR PARTIAL PUBLICATION
Pursuant to California Rules of Court, rule 8.110, this opinion is certified for publication with the exception of parts I, II, III and V.
(Super. Ct. No. CRF09945)
APPEAL from a judgment of the Superior Court of Yolo County, Stephen L. Mock, Judge. Affirmed as modified.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
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); (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.
Undesignated statutory references are to the Penal Code.
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.
BACKGROUND
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 Norteño 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 because he had blood on his hands. He also had a tooth in his fist; Romero removed the tooth and put it in his wallet.
Defendant told Ramos he asked a guy walking by for a cigarette and the guy "flipped out." Romero said he ran up to the guy because he thought the guy was going to hit defendant. Ramos asked if defendant hit the guy, and defendant said "no," but then said "yes." Defendant said Romero kept hitting the guy. According to Ramos, Romero appeared "fucking happy that he hit the guy or something." Ramos also said defendant told her he wanted a cigarette, but then wanted to see if the guy had any money. She told him it was "hella stupid" to rob people. Defendant asked Ramos to check if he had blood on his white jacket but she did not see any.
According to Raya, when defendant and Romero returned to her apartment they said they had beaten a guy who reacted badly when defendant asked for a cigarette. They all spent the night at Raya's place, and later on that morning she heard defendant say they beat up the guy and robbed him.
Detective Estrada interviewed defendant in February 2009, and a redacted recording of the interview was played for the jury. Initially, defendant denied hitting Harpst. But defendant eventually said he hit Harpst's neck or face once at the beginning of the altercation, and that Romero did most of the fighting. Defendant thought Romero probably believed Harpst was disrespecting him when Harpst "flipped out" about their request for a cigarette and then threw one at defendant. When Detective Estrada asked what defendant would do if someone disrespected him in front of his "homeboys," defendant said, "You disrespect them back." Defendant said rumors were going around about the fight, and people said the victim was dead or brain dead.
Officer Anthony Herrera also interviewed defendant. Defendant told Officer Herrera the altercation started because the victim disrespected defendant by throwing cigarettes at him. Defendant said he hit Harpst a few times, but mainly in the leg area. According to defendant, Romero stomped on Harpst's head.
Officer Herrera's main focus during the interview was on defendant's gang activity. Defendant belonged to the Red Nose Pittz and his gang friends called him Ryda because he was willing "to ride for the gang," which meant to commit crimes for them. Defendant admitted that he and other gang members would beat up and rob people; it was part of being in the gang. During one of Officer Herrera's previous contacts with defendant, he told Officer Herrera they committed crimes to show the Broderick Boys that the Red Nose Pittz were worthy of being a Norteño in the Broderick area, and because they were tired of getting beaten up by the Broderick Boys. The Broderick Boys were the predominant gang in the West Sacramento area.
Officer Michael Duggins testified as a gang expert regarding Norteños in general, and the Red Nose Pittz in particular. The Norteños' principal activities are assault with great bodily injury, murder and robbery. The Red Nose Pittz and the Broderick Boys are both Norteño subsets, and their rivals are the Sureños. The Red Nose Pittz are from Citrus Heights, while the Broderick Boys' territory is West Sacramento. According to Officer Duggins, both defendant and Romero were active members of the Red Nose Pittz.
Officer Duggins said that to get into a gang, it is not enough to associate with gang members; one has to engage in criminal activity that will benefit the gang. The use of force or fear creates respect with gang members. Gang members typically use monikers. A common one is Ryda, which means you are willing to ride along with the gang to party or commit crimes with them. Officer Duggins reviewed various photographs of defendant, Romero and other gang members throwing gang signs and wearing gang colors, and explained how they indicated their gang involvement. Officer Duggins had prior contacts with defendant in which defendant admitted he was a gang member.
Officer Duggins opined that the beating and robbery of Harpst was committed in furtherance of the gang because (1) the gang member and gang gained a material benefit from whatever was taken from the victim, and (2) the gang member and gang achieved an increase in status. According to Officer Duggins, the crime increased defendant's status in the gang, and elevated the gang's status in the community via word of mouth. Officer Duggins testified that when he and fellow law enforcement officers were investigating the assault, many people had heard about the crime. Defendant and Romero were well-known gang members and these offenses elevated the gang's status. Ramos, defendant's girlfriend, told Officer Duggins that defendant had participated with other gang members in assaulting and robbing people to gain the gang's respect, and that they would brag about their escapades "to show that they had put in work for the gang."
DISCUSSION
I*
Defendant contends 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 Romero in committing attempted murder. Defendant maintains he simply kicked Harpst in the lower half of his body, while Romero punched and kicked Harpst's head; that the nature of defendant's assault on Harpst does not support an inference that he intended to kill Harpst rather than simply hurt him; and that attempted murder is not a natural and probable consequence of any of the crimes he aided and abetted Romero in committing against Harpst. We disagree.
In reviewing the evidence to determine whether it is sufficient to support the verdict, we view the entire record in the light most favorable to the judgment, and presume in support of the verdict the existence of every fact a jury reasonably could have deduced from the evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1156.) The evidence is sufficient to support the verdict if, so viewed, a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Wilson (2006) 138 Cal.App.4th 1197, 1201.)
The specific intent to kill is a requisite element of attempted murder. (People v. Smith (2005) 37 Cal.4th 733, 739.) It is essentially the same as express malice, which requires a showing that the assailant either desires the victim's death or knows to a substantial certainty that the result will occur. (Ibid.)There is rarely direct evidence of a defendant's intent to kill; it " 'must usually be derived from all the circumstances of the attempt, including the defendant's actions.' " (Id. at p. 741.)
" 'A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]' [Citation.] Liability under the natural and probable consequences doctrine 'is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.' [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 920.)
" '[T]o be reasonably foreseeable "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . ." [Citation.]' [Citation.] A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury." (People v. Medina, supra, 46 Cal.4th at p. 920.)
Here, defendant and Romero viciously attacked Harpst for nothing more than feeling disrespected because he tossed a cigarette at defendant. While Romero wailed away at Harpst's head, defendant kicked at Harpst's legs and torso, thereby ensuring Harpst could not get up and escape from the assault. According to Eid, the two men were brutally kicking the victim around like a rag doll, "giving it all they had," and they appeared to be enjoying it. Eid believed the men "weren't horsing around because [Harpst] just wasn't moving, and they were still beating on him pretty good." Eid turned his truck around and drove back to intervene because, in his opinion, if he had not done so "they would have killed him." The beating inflicted by Romero and defendant was so severe that Harpst suffered a significant brain injury, multiple facial fractures, his eyes were swollen to the size of golf balls, and blood was pouring from his mouth and nose. The nature of the attack and the severity of the injuries supports an inference that both men intended to kill Harpst.
The evidence indicates it was Romero who was pummeling and kicking Harpst's head because (1) Eid indicated one man was at Harpst's head doing more of the beating on the head while the other attacker was at Harpst's feet, and (2) when defendant and Romero returned to Raya's apartment, Romero had a tooth in his fist and blood on his hands while defendant did not have blood on his white jacket.
That Romero might have delivered the worst of the blows does not absolve defendant of liability for attempted murder. Defendant does not dispute that he knowingly and intentionally participated in the attack on Harpst, or that the evidence is sufficient to support his and Romero's convictions for mayhem, and assault by means of force likely to cause great bodily injury. Thus, even if the evidence were not sufficient to support an inference that defendant intended to kill Harpst, the evidence demonstrates that defendant is guilty of attempted murder on an aiding and abetting theory. He intentionally assisted Romero in a vicious assault that was carried out in such a manner that a reasonable person would have foreseen that Romero was trying to kill Harpst; that is, attempted murder was a natural and probable consequence of the assault with great bodily injury. Rather than stopping when Romero escalated the attack against the helpless victim, defendant chose to pause, step back, and then continue kicking Harpst. Substantial evidence supports the verdict of attempted murder.
II*
Defendant next contends there is insufficient evidence that he committed the charged crimes for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1).
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
Section 186.22, subdivision (b), does not criminalize mere gang membership, and not every crime committed by a gang member is gang related. (Albillar, supra, 51 Cal.4th at p. 60; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) The prosecution's proof of defendant's gang membership at the time of the offense does not, by itself, support the enhancement; the prosecution must also prove that (1) defendant committed the crime " 'for the benefit of, at the direction of, or in association with any criminal street gang,' " and (2) defendant committed the crime with the specific intent to assist in any criminal conduct by gang members. (Albillar, supra, 51 Cal.4th at p. 59.)
Defendant does not dispute that the second prong of the statute is met, because there is substantial evidence that he intended to and did commit the charged felonies with Romero, a known member of the Red Nose Pittz gang. Under the circumstances, the jury could fairly infer that defendant had the specific intent to promote, further, or assist Romero's criminal conduct. (Albillar, supra, 51 Cal.4th at p. 68.)
But defendant challenges the evidence in support of the first prong. A crime can satisfy the first prong when it is committed in association with the gang, or when it is committed for the benefit of the gang. (Albillar, supra, 51 Cal.4th at p. 60.) Evidence that gang members acted in concert can provide substantial evidence the crime was committed in association with the gang (id. at pp. 60-63), and expert opinion is admissible as part of the evidentiary showing on how the crimes can benefit the gang (id. at pp. 63-64). For example, "[e]xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22(b)(1). (See, e.g., People v. Vazquez (2009) 178 Cal.App.4th 347, 354 [relying on expert opinion that the murder of a nongang member benefited the gang because 'violent crimes . . . elevate the status of the gang within gang culture and intimidate neighborhood residents who are . . . "fearful . . . that they may be the gang's next victim . . ." ']; People v. Romero (2006) 140 Cal.App.4th 15, 19 [relying on expert opinion that 'a shooting of any African-American men would elevate the status of the shooters and their entire [Latino] gang'].)" (Albillar, supra, 51 Cal.4th at p. 63.)
Defendant argues that no rational trier of fact could find the crimes benefitted the Norteños and/or the Red Nose Pittz gang. According to defendant, "the primary evidence here was the gang expert's testimony, which was based on purely general principles and speculation, rather than on facts specific to this case." Defendant believes the evidence shows nothing more than that he is a gang member, and that he committed the charged crimes with Romero for their own purposes. This is so, he argues, because the crimes were not committed against a rival gang member, and there is no evidence defendant and Romero yelled gang slogans or threw gang signs. Defendant's argument is not persuasive.
The evidence at trial disclosed that defendant and Romero were both members of the Red Nose Pittz gang, a Norteño subset. Officer Duggins testified that committing crimes elevates a member's status within the gang, as well as the gang's status in the community when the word gets out, and word does get out. He explained that the use of force or fear creates respect with gang members. When law enforcement investigated the crime, many people had heard about the assault on Harpst committed by well-known Nortenos. Defendant even commented that he had heard rumors about the assault, including that the victim was dead or brain dead.
Defendant told Officer Herrera that the Red Nose Pittz assaulted people to show the Broderick Boys that the Red Nose Pittz were worthy of being Norteños in the Broderick area, and because they were tired of getting beaten up by the Broderick Boys. Ramos told the police the Red Nose Pittz liked to jump people and rob them in order to gain respect from other Norteños. According to Ramos, the gang will beat up anyone who "talks shit to [th]em." Defendant told Officer Herrera and Detective Estrada that Romero and defendant assaulted Harpst after he disrespected them by throwing a cigarette at them. Defendant told Detective Estrada that when someone disrespects you in front of your "homeboy," you disrespect them back.
The evidence shows that defendant, in association with Romero, a fellow gang member, assaulted Harpst because they felt disrespected by him, and when you are disrespected in front of a fellow gang member you have to respond. Their response was to assault and rob Harpst, the type of crimes their gang committed to gain the respect of the Broderick Boys. People in the community had heard about the attack and the serious injuries suffered by Harpst, all of which benefitted the gang's status in the community. There is substantial evidence the crimes were gang related.
Defendant counters that there was evidence an attack in the Broderick Boys' territory could create problems for the Red Nose Pittz because the assault would increase police presence in the area, which the Broderick Boys would construe as disrespecting their territory. However, a finding supported by substantial evidence will not be set aside merely because the circumstances might also be reconciled with a contrary finding. (Albillar, supra, 51 Cal.4th at p. 60.) Whether the attack on Harpst was gang related or personal was a question for the jury, which was appropriately instructed that there needed to be evidence beyond the gang expert's opinion and the mere fact of defendant's gang membership in order to return a true finding on the gang enhancement. The jury decided the crimes committed against Harpst were gang related, and substantial evidence supports its determination.
III*
Defendant maintains 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. He argues the error was prejudicial because it diverted the jury's attention from the reasonable doubts inherent in the prosecution's case by portraying defendant as an antisocial individual of generally bad character.
During the trial, defense counsel moved to prohibit the prosecution from introducing evidence of defendant's prior misdemeanor behavior involving the assault of a "bum," as well as the fact of defendant's probationary status. Defense counsel sought to exclude specific portions of Ramos's interview. The trial court ordered that the specified portions be redacted from the recording and transcript of the interview. The trial court added: "Let me make my position clear. [¶] I would bar testimony or evidence of the defendant's prior misdemeanor behavior for an assault on some, what we'll call, bum under [Evidence Code section] 1101[, subdivision] (a) and under [Evidence Code section] 352."
Although the prosecutor redacted most of the statements from Ramos's interview, one specified reference was missed. Detective Estrada mentioned defendant's arrest for beating up a bum and asked Ramos if she knew of other incidents where defendant assaulted anyone. Ramos replied that she only knew about "[t]his one and the bum."
Thereafter, before the jury heard the recording of defendant's pretrial interview, defense counsel objected to anything coming in that contravened the trial court's prior ruling. Defense counsel singled out specific objectionable portions of the transcript of defendant's interview. The trial court ordered certain redactions. But the transcript of defendant's interview given to the jury (while it heard the recording of the interview) includes a reference by defendant to the fact he "almost [got] convicted of something like this before" and Detective Estrada's response, "I know you have a history of this . . . ."
Defendant's claim of error is unavailing because it is inconceivable that he suffered any prejudice from the jury hearing the aforementioned portions of Ramos's and defendant's interviews. From other properly admitted evidence, the jury knew that defendant and his gang, in an effort to establish their worthiness as Norteños, jumped or beat up people who dared to "talk[] shit to [th]em." More importantly, Eid testified he witnessed Harpst brutally beaten by two men, and defendant admitted that he, and fellow gang member Romero, assaulted Harpst over a tossed cigarette and perceived disrespect. But for Eid's intervention, Harpst might not have survived. Under the circumstances, it is not reasonably probable that absent the alleged evidentiary errors the jury would have returned different verdicts on any of the charges. (People v. Cudjo (1993) 6 Cal.4th 585, 611.) In fact, the alleged errors are harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
IV
Defendant contends 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). We agree.
Section 12022.7, subdivision (b) states: "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, 'paralysis' means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism." (Italics added.)
Under the plain language of the statute, the fact the victim suffered a brain injury is not sufficient to impose the enhancement; the victim must be rendered comatose due to the brain injury. Although it is not necessary for the victim to become comatose permanently (People v. Galvan (2008) 168 Cal.App.4th 846, 855 ["enhancement applies to comatose victims, whether the state of their coma is permanent or not"; People v. Tokash (2000) 79 Cal.App.4th 1373, 1378 (Tokash)[same]), there must be evidence showing the victim was comatose at some point. The statute does not define the meaning of the term "comatose." One dictionary defines it as "of, resembling, or affected with coma" (Merriam-Webster's Collegiate Dict. (11th ed. 2006) at p. 246), and a coma is defined as "profound unconsciousness caused by disease, injury, or poison." (Ibid.)But in Tokash, supra, 79 Cal.App.4th 1373, the appellate court took judicial notice of medical literature stating that "a Glasgow Coma Scale of eight or less is the accepted definition of the comatose patient." (Id. at p. 1377.) Defendant's appellate counsel refers us to similar medical authority that patients with a score between 3 and 8 have a severe disability in brain function resulting in a coma, while a score of 9 to 12 reflects a moderate disability with physical or cognitive impairments that may or may not resolve. His request that we take judicial notice of these medical authorities is granted.
According to Tokash, supra, 79 Cal.App.4th at page 1378, "the evolution of the legislative language after the bill's original introduction, which can offer 'considerable enlightenment as to legislative intent' (People v. Goodloe (1995) 37 Cal.App.4th 485, 491), confirms the Legislature did not intend to limit the enhancement to victims in permanent comas. Subdivision (b) of section 12022.7 was added by the enactment of Senate Bill No. 529. (Stats. 1993, ch. 607, § 2, p. 3260.) As originally introduced in the Legislature, the subdivision (b) enhancement applied only if the injury caused the victim to 'become clinically brain dead,' connoting a permanent state. (Sen. Amend. to Sen. Bill No. 529 (1993-1994 Reg. Sess.) May 20, 1993 at < http:// www.leginfo.ca.gov/ > [as of Feb. 22, 2000].) During the legislative process, the phrase 'clinically brain dead' was replaced with the word 'comatose.' (Assem. Amend. to Sen. Bill No. 529 (1993-1994 Reg. Sess.) July 15, 1993 at < http://www.leginfo.ca.gov/ > [as of Feb. 22, 2000].) The change in terminology from brain dead to comatose demonstrated an intent that the enhancement applied even though the victim's comatose condition was not permanent and irreversible."
Here, there is a failure of proof that Harpst was ever comatose. Although Harpst's brother said Harpst was not "conscious" at first, Dr. Shatz expressly stated that Harpst was "conscious" during the time Harpst was in the intensive care unit, and Dr. Shatz declined to say that Harpst was comatose. Shatz chose instead to refer to the Glasgow Coma Scale in assessing Harpst's mental status and said he had a score of 9. Medical authority indicates that a score of 8 or less defines a comatose patient. Furthermore, there was no evidence that Harpst's doctors ever put him into an induced coma with paralytics and sedatives. (Compare, Tokash, supra, 79 Cal.App.4th at pp. 1377-1378 [a medically necessary, chemically induced coma is sufficient to support a section 12022.7, subdivision (b) enhancement].)
There is no question that Harpst was seriously injured, was initially nonresponsive, and suffered a significant brain injury as a result of the assault. But under the express language of the statute more is required; he must have been rendered comatose. There was no substantial evidence introduced at trial demonstrating that Harpst was rendered comatose due to his brain injury. Accordingly, we will strike the great bodily injury (§ 12022.7, subd. (b)) enhancement.
V*
Alternatively, defendant contends that even if there is sufficient evidence Harpst was comatose, there is still insufficient evidence to support the great bodily injury enhancement because there is no substantial evidence that defendant, rather than Romero, personally inflicted Harpst's severe head injuries. We need not address this alternative contention because we will strike the great bodily injury enhancement for the reasons set forth in part IV above.
It appears that a section 12022.7, subdivision (a) enhancement is a lesser included offense of a subdivision (b) enhancement, but it was not charged and the Attorney General does not suggest that we may impose the lesser enhancement instead of the greater. Moreover, it appears that defendant did not personally inflict great bodily injury upon Harpst's head, and there is no evidence of any other great bodily injury suffered by Harpst. The brain injury was the only serious injury discussed by the doctor. This is not a case where (1) there was a group attack, (2) it cannot be determined which of the group inflicted the great bodily injury, and (3) there is evidence that the defendant personally inflicted physical force that could have caused the great bodily injury suffered by the victim.(People v. Modiri (2006) 39 Cal.4th 481, 486; People v. Gutierrez (1996) 46 Cal.App.4th 804, 816; People v. Corona (1989) 213 Cal.App.3d 589, 594.) Rather, Eid said one of the assailants was at Harpst's head and was "really working on him," the other was kicking Harpst in the lower body and crotch, and Eid could not say he saw the one at Harpst's feet move up to the head. As we have explained, Romero must have been the one by Harpst's head because he had a tooth imbedded in his hand, had blood on his hands, told Ramos he hit Harpst in the head, and it appears defendant did not have any blood on his white jacket.
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DISPOSITION
The great bodily injury (§ 12022.7, subdivision (b)) enhancement is stricken. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended and corrected abstract of judgment that reflects this modification to the judgment and corrects a typographical error on the abstract by deleting "667" next to count 1, under "SECTION NO." and replacing it with "664." The trial court shall forward a certified copy of the amended and corrected abstract of judgment to the California Department of Corrections and Rehabilitation.
MAURO, J. We concur: RAYE, P. J. ROBIE, J.