P. v. Camarena

Filed 10/9/15 P. v. Camarena CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD CAMARENA,
Defendant and Appellant.
G049416
(Super. Ct. No. 12CF2271)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Patrick
Donahue, Judge. Affirmed.
David L. Kelly, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

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Richard Camarena appeals from a judgment after a jury convicted him of
attempted murder, aggravated mayhem, and assault with a deadly weapon and found true
various enhancements, including gang enhancements. Camarena argues insufficient
evidence supports his conviction for aggravated mayhem, the trial court’s instructions on
imperfect self-defense were incomplete, and the court erred by failing to strike the gang
enhancement on his attempted murder conviction. None of his contentions have merit,
and we affirm the judgment.
FACTS
One July afternoon, 22-year-old Darnell Dearing, who is African American,
walked alone on 17th Street between Lincoln and Grand. He was unarmed. A burgundy
sports utility vehicle (SUV) passed him before he crossed 17th Street to enter the strip
mall parking lot. The male passenger, Camarena, made hand gestures, either “P” or “D”.
As Dearing crossed the street, the SUV made a U-turn. While he walked through the
parking lot, the SUV pulled in front of him. From the SUV’s passenger side, Camarena
asked Dearing where he was from. Dearing answered, “I don’t bang,” meaning he did
not belong to a gang. Camarena said, “I’m from Darkside,” and Dearing said “I don’t
give a fuck.” Camarena got out of the SUV, and he hit Dearing in the face two times
with his right fist. Dearing hit Camarena twice. Dearing then felt a blow to his neck.
Officer Carlo Marzocca responded to the scene, saw the men fighting, and
ordered them to stop over his public address system. When Dearing dropped his hands
and turned to look at Marzocca, Camarena raised his right hand, which held something,
and made “a slashing motion from upper right to lower left.” Dearing grabbed the left
side of his neck or throat. Camarena walked toward the SUV and tossed a long, thin
object into the right front passenger side. Marzocca drew his gun, ordered Camarena to
the ground, and handcuffed him. Camarena had blood on his shirt, but he suffered no
injuries to his face or hands. Marzocca directed the female driver to park the SUV.

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Marzocca recovered a seven-inch black handled kitchen knife from the SUV’s glove
compartment.
At the hospital, Dearing was treated for the injury to his neck and given
morphine for the pain. His lip and shoulder were cut, and he suffered an injury to his eye
and temple.
An information charged Camarena with the following: attempted murder
(Pen. Code, §§ 664, subd. (a), 187, subd. (a), all further statutory references are to the
Pen. Code) (count 1); aggravated mayhem (§ 205) (count 2); and assault with a deadly
weapon (§ 245, subd. (a)(1)) (count 3). The information alleged Camarena committed
counts 1, 2, and 3 for the benefit of a criminal street gang (§ 186.22, subd. (b)), and he
inflicted great bodily injury (§ 12022.7, subd. (a)). The information also alleged he
personally used a deadly weapon (§ 12022, subd. (b)(1)), to commit counts 1 and 2.
At trial, the prosecutor offered the testimony of gang expert
Officer George Kaiser. After detailing his background, training, and experience, Kaiser
testified concerning the culture and habits of traditional, turf-oriented Hispanic street
gangs. Kaiser testified concerning the following: how to join a gang; levels of gang
membership; the concept of respect and how to earn respect by committing violent acts
for the gang; “hit[ting] up” another person to learn their gang affiliation; what it means to
claim a gang, including using gang hand signs; and the importance of weapons within
gang culture.
Kaiser testified Darkside formed in the 1990’s and it was a turf-oriented
Hispanic gang with between 30 and 100 active members. He stated its common symbol
was “DS,” “DSK,” or “DSX3,” and its gang sign is to make a “d” with one hand. He said
Darkside’s primary activities were assaults, assaults with deadly weapons, car thefts, and
illegal possession of guns. He also testified concerning the statutorily required predicate
offenses. Kaiser opined Darkside was a criminal street gang.

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Kaiser testified Camarena had approximately 15 police contacts between
2006 and 2012, and in 2007 admitted being affiliated with Darkside. He said that in
2007, Camarena was caught tagging letters of the Darkside gang and was constantly
talking about Darkside in school. Kaiser added the incident here was not in Darkside’s
claimed territory. Based on hypothetical questions matching the facts of this case, Kaiser
opined the offenses benefitted and promoted Darkside because they instilled fear in the
victim and increased Darkside’s reputation in the community when the perpetrator
flashed the Darkside gang sign and used a knife to commit a violent act.
Camarena offered the following testimony. Nohemi Camarena,
Camarena’s mother, testified he was 10 or 11 years old when his older brother Miguel
Camarena (Miguel) left their house. Miguel had been in trouble for his involvement in
Darkside. To her knowledge, Camarena was not involved in Darkside. Camarena had
been in special education classes since the first grade, and he had trouble reading.
Jose Guzman, Camarena’s friend, testified he was in the SUV that
afternoon. Guzman stated an angry dark-skinned male approached the passenger side of
the SUV and yelled at them to fight. When Camarena got out of the SUV, the man
punched Camarena. Camarena fought back but he did not have a weapon.
Eric Aguilar also testified he was in the SUV. Aguilar stated Camarena got
out of the SUV and he started fighting with a man but he did not see who threw the first
punch. Aguilar did not see anything in Camarena’s hands when he got out of the SUV.
Dr. Joseph Cervantes, a clinical psychologist, testified he reviewed
Camarena’s intellectual functioning testing.1 Cervantes stated Camarena’s IQ was 73 or
74, which indicated borderline intellectual functioning. He explained someone with
Camarena’s level of functioning would suffer from the following: difficulty making
decisions and understanding social judgment; limited abilities to see and comprehend
1 Before Cervantes testified, defense counsel stated his testimony was
relevant on two issues, deliberation/premeditation and the gang allegations.

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options; lessened capacity to understand and appreciate events; and lessened ability to
manage a situation and develop solutions that are less impactful and harmful to them.
Cervantes also stated Camarena’s testing showed low emotional intelligence and a poor
memory. He opined Camarena had the emotional maturity of a 15 year old and he was
operating at a fourth grade level in school.
At a hearing on the jury instructions, the trial court inquired whether
counsel objected to the proposed instructions. When the court asked defense counsel
whether the self-defense instructions were complete, he said they were. Later, defense
counsel agreed the instructions on the two theories of attempted voluntary manslaughter,
heat of passion and imperfect self-defense, were correct. Finally, when the court
indicated evidence of Camarena’s mental impairment was relevant only to the issues of
premeditation and deliberation, defense counsel agreed.
The trial court instructed the jury on the charged offenses, the lesser
included offenses, and the enhancements. As relevant here to count 1, the court
instructed the jury on attempted murder, deliberation and premeditation, heat of passion,
and imperfect self-defense. Additionally, the court instructed the jury it could consider
evidence of Camarena’s mental impairment for the limited purpose of determining
whether he had the required specific intent or mental state, specifically whether he acted
with premeditation and deliberation. Finally, the court instructed the jury on
self-defense.
At the close of evidence, Camarena moved to dismiss count 2, aggravated
mayhem, pursuant to section 1118. Relying on People v. Park (2003) 112 Cal.App.4th
61 (Park), and other cases from CALCRIM No. 800’s use notes, defense counsel argued
the evidence demonstrates the attack was indiscriminate and there was no evidence of a
specific intent to disfigure. The trial court denied the motion concluding the evidence
Dearing lowered his hands and Camarena slashed his neck was sufficient to support an

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aggravated mayhem conviction. The jury convicted Camarena of all the counts and
found true all the allegations.
At the sentencing hearing, defense counsel acknowledged that pursuant to
People v. Campos (2011) 196 Cal.App.4th 438 (Campos), the trial court was required to
sentence Camarena to 15 years to life, instead of the customary seven year minimum,
pursuant to section 186.22, subdivision (b)(5), but counsel voiced his disagreement with
the law. The trial court stated: “Yeah. They say you can’t strike something that’s not an
enhancement. And they don’t consider the 15 to life an enhancement.” Defense counsel
added he disagreed with the Campos court’s conclusion a trial court does not have
discretion to strike additional punishment pursuant to section 1385. Again, counsel
acknowledged, “But that’s the state of the law.”
After giving his tentative sentence and allowing counsel the opportunity to
argue, the trial court sentenced Camarena to prison for 15 years to life on count 1
pursuant to section 186.22, subdivision (b)(5). The court imposed and stayed the
sentences on counts 2 and 3 pursuant to section 654. The court struck the great bodily
injury and personal use enhancements pursuant to section 1385.
DISCUSSION
I. Sufficiency of the Evidence
Camarena argues insufficient evidence supports his conviction for
aggravated mayhem. We disagree.
“Aggravated mayhem requires proof the defendant specifically intended to
maim—to cause a permanent disability or disfigurement. [Citation] A jury may not find
specific intent ‘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.] ‘A jury may infer a
defendant’s specific intent from the circumstances attending the act, the manner in which
it is done, and the means used, among other factors.’ [Citation.] ‘[E]vidence of a

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“controlled and directed” attack or an attack of “focused or limited scope” may provide
substantial evidence of’ a specific intent to maim. [Citations.]” (People v. Szadziewicz
(2008) 161 Cal.App.4th 823, 831 (Szadziewicz).) “We review the whole record in the
light most favorable to the judgment to decide whether substantial evidence supports the
conviction, so that a reasonable jury could find guilt beyond a reasonable doubt.
[Citation.]” (Ibid.)
In People v. Manibusan (2013) 58 Cal.4th 40, 88 (Manibusan), the
California Supreme Court addressed the issue of whether there was sufficient evidence of
specific intent to support defendant’s conviction for, inter alia, aggravated mayhem. In
that case, defendant shot the victim multiple times from five to 10 feet away hitting her
once in the face. The court stated that it had previously held shooting a victim in the
head can support the inference of intent to kill and the court “now” holds shooting a
victim in the head can support the “inference of an intent to cause permanent disability or
disfigurement.” (Ibid.) The court explained, “‘[A] defendant may intend both to kill his
or her victim and to disable or disfigure that individual if the attempt to kill is
unsuccessful,’ and evidence that is sufficient to establish a defendant’s intent to kill the
victim can also be ‘sufficient to establish the intent to permanently disable or disfigure
that victim.’ [Citations.]” (Id. at p. 89.)
In Szadziewicz, supra, 161 Cal.App.4th at pages 829, 831-832, a jury
convicted defendant of aggravated mayhem after he entered the hotel room of his
daughter’s boyfriend, held him on the bed, and slashed his face with a box cutter from the
temple towards the nose, then back towards the ear. The Szadziewicz court held the
“placement and nature” of the “facial lacerations amply supported a reasonable inference
that [defendant] meant to disfigure” the victim’s face. (Id. at p. 832.)
Here, there was sufficient evidence demonstrating Camarena had the
specific intent to permanently disable or disfigure Dearing during this unprovoked gang
attack. The evidence established that as the SUV passed Dearing, Camarena made a gang

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hand sign. After the SUV’s driver made a U-turn and cut off Dearing as he walked
through the parking lot, Camarena got out of the SUV and “hit up” Dearing, asking him
where he was from and announcing his own gang affiliation. After the two exchanged
punches, Marzocca arrived at the scene and ordered the men to stop fighting. When
Dearing lowered his hands and turned towards Marzocca, Camarena made a broad
downward slashing motion with a seven inch knife across his neck. Like in Manibusan
where defendant shot victim in the head from close range, and Szadziewicz where
defendant slashed the victim’s face with a box cutter, Camarena’s slashing of Dearing’s
neck with a sizeable knife evidences both an intent to kill and an intent to permanently
disable and disfigure.
Camarena relies on a number of cases where courts have found sufficient
evidence of specific intent to disable or disfigure to argue the facts here are
distinguishable and thus the evidence is insufficient to support his conviction on count 2.
In People v. Quintero (2006) 135 Cal.App.4th 1152, 1163 (Quintero), the
court held an intent to maim could reasonably be inferred from evidence defendant
attacked a particularly vulnerable portion of the victim’s body, his head, with forceful
blows, stopping his attack only once he had maimed the victim’s face. In Park, supra,
112 Cal.App.4th at pages 65, 69, when defendant became angry over a remark in a
restaurant, he attacked his victim with a steel knife sharpener by aiming his blows to the
head—a vulnerable part of the body—stopping only when he had knocked out several
teeth. In People v. Ferrell (1990) 218 Cal.App.3d 828, 831-832, 835-835, defendant’s
acts were shown to have been “directed and controlled” because she asked for the victim
by name, shot the victim’s father in the knee as he moved to intervene, and then shot the
victim in the neck at close range.
These cases are of no help to Camarena as they provide further support for
our conclusion targeting the head or neck region with a deadly weapon can establish a
specific intent to permanently disable or disfigure. Juxtaposed against these cases is

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People v. Lee (1990) 220 Cal.App.3d 320 (Lee), a case where the court found the
evidence insufficient to support a conviction for aggravated mayhem.
In Lee, supra, 220 Cal.App.3d at page 326, defendant spontaneously
attacked his neighbor with a barrage of punches to the head and kicks to the torso.
Although defendant used no weapons, the victim sustained severe head trauma that
caused permanent partial paralysis. The court of appeal reversed defendant’s aggravated
mayhem conviction. The Lee court explained the requisite specific intent can be inferred
from factors apart from the results of the attack, including the circumstances, manner, and
means of the attack. (Id. at p. 325.) The court reasoned those factors did not exist
because defendant did not shoot or stab the victim (he used his fists and feet), and
although defendant punched victim in the face, he did not kick his head. The court
concluded, “The evidence shows no more than a sudden, indiscriminate, and unfocused
battering of [victim’s] body.” (Id. at p. 326.)
Unlike Lee, and similar to Manibusan and Szadziewicz, here Camarena
focused his attack with a deadly weapon on one of the most vulnerable parts of a person’s
body, the neck, demonstrating a controlled and directed attack or an attack of focused or
limited scope. (Szadziewicz, supra, 161 Cal.App.4th at p. 831; Quintero, supra,
135 Cal.App.4th at p. 1162; Lee, supra, 220 Cal.App.3d at p. 326.) Therefore, sufficient
evidence supports Camarena’s conviction for count 2.
II. Jury Instruction & Ineffective Assistance of Counsel
Conceding he did not request amplification, Camarena contends the trial
court erred by not instructing the jury it could consider evidence of his mental
impairment vis-à-vis imperfect self-defense. Alternatively, Camarena claims his defense
counsel was ineffective. As we explain below, Camarena was not prejudiced by any
error.
The trial court is not required to give CALCRIM No. 3428 sua sponte but
only on the defense’s request. (People v. Saille (1991) 54 Cal.3d 1103, 1119; People v.

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Larsen (2012) 205 Cal.App.4th 810, 824.) A defendant who fails to request
amplification of a jury instruction cannot later claim instructional error. (People v.
Maury (2003) 30 Cal.4th 342, 426.)
Here, Camarena did not object or request amplification of the jury
instruction on imperfect self-defense and thus he forfeited appellate review of this claim.
(People v. Virgil (2011) 51 Cal.4th 1210, 1260 [defendant who fails to object to
instruction at trial forfeits appellate review of claim].)
With respect to Camarena’s claim of ineffective assistance of counsel, it too
is meritless. “If a claim of ineffective assistance of counsel can be determined on the
ground of lack of prejudice, a court need not decide whether counsel’s performance was
deficient. [Citations.]” (In re Crew (2011) 52 Cal.4th 126, 150.) Here, Camarena was
not prejudiced by any instructional error even under the heightened federal constitutional
standard articulated in Chapman v. California (1967) 386 U.S. 18, 24.
In People v. Wharton (1991) 53 Cal.3d 522, 569 (Wharton), the trial court
rejected defendant’s proposed special instruction on provocation and heat of passion
because a portion of it was an incorrect statement of law and other portions were covered
in other instructions. The California Supreme Court stated: “Finally, although the jury
was not directly instructed that provocation could occur over a ‘considerable period of
time,’ the jury was instructed that a killing is first degree murder if it is ‘the result of
deliberation and premeditation, so that it must have been formed upon pre-existing
reflection and not upon sudden heat of passion.’ (See CALJIC No. 8.20.) By finding
defendant was guilty of first degree murder, the jury necessarily found defendant
premeditated and deliberated the killing. This state of mind, involving planning and
deliberate action, is manifestly inconsistent with having acted under the heat of
passion—even if that state of mind was achieved after a considerable period of
provocatory conduct—and clearly demonstrates that defendant was not prejudiced by the
failure to give his requested instruction.” (Wharton, supra, 53 Cal.3d at p. 572; People v.

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Mincey (1992) 2 Cal.4th 408, 438 [when jury found torture murder special circumstance
true necessarily resolved against defendant factual questions on manslaughter].)
Camarena could not have been prejudiced by any instructional error
because the jury necessarily resolved the factual question adversely to him when it found
him guilty of attempted murder. After finding Camarena guilty of attempted murder, the
jury made the additional finding he acted willfully, deliberately, and with premeditation.
This state of mind is manifestly inconsistent with having acted under the actual but
unreasonable belief in the need to defend oneself. Thus, we conclude any instructional
error was harmless beyond a reasonable doubt.2
III. Sentencing
Camarena asserts the trial court was unaware of its discretion to strike the
minimum term of 15 years as required by section 186.22, subdivision (b)(5), and we must
remand for resentencing. He claims the court was unaware of its discretion, and without
discussing or analyzing the issue, the court erroneously imposed a 15-year minimum
term. To support his claim, Camarena cites to the transcript of the sentencing hearing
and quotes verbatim his defense counsel’s argument, including his concession Campos is
good law. Curiously, Camarena omits from his quoted passage the trial court’s
conclusion he was bound to follow Campos, as we quote above. To the extent Camarena
argues the trial court erred because it failed to exercise its discretion, we disagree. The
court’s comments reflect it reviewed Campos and considered the issue.
To the extent Camarena contends Campos was wrongly decided, he has
offered no compelling justification to depart from the Campos court’s conclusion
2 After the trial here, the California Supreme Court issued its opinion in
People v. Elmore (2014) 59 Cal.4th 121. In that case, the court further developed the
concept of imperfect self-defense by explaining “defendants who mistakenly believed
that actual circumstances required their defensive act may argue they are guilty only of
voluntary manslaughter, even if their reaction was distorted by mental illness. But
defendants who contend they killed in self-defense because of a purely delusional
perception of threat must make that claim at a sanity trial.” (Id. at p. 146.)

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section 186.22, subdivision (b)(5), is an alternate penalty provision and not a sentence
enhancement that a trial court can strike. (Campos, supra, 196 Cal.App.4th at
pp. 448-450.) The case Camarena relies on is not good law as the California Supreme
Court granted review in that case (People v. Venegas (2014) 229 Cal.App.4th 849,
review granted Dec. 10, 2014, S221923), and the court is currently considering a similar
issue (People v. Fuentes (2014) 225 Cal.App.4th 1283, review granted Aug. 13, 2014,
S219109). Camarena has failed his burden to show prejudicial sentencing error.
DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.

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