Filed 7/24/15 P. v. Alvarado CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

OSCAR ALVARADO,

Defendant and Appellant.

 B256258

 (Los Angeles County

 Super. Ct. No. BA358128)

APPEAL from a judgment of the Superior Court of the County of Los Angeles, 

Leslie A. Swain, Judge. Affirmed in part, modified, and remanded.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney 

General, Lance E. Winters Senior Assistant Attorney General, Victoria B. Wilson, 

Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, 

for Plaintiff and Respondent.
2

INTRODUCTION

Defendant and appellant Oscar Alvarado (defendant) was convicted of aggravated 

mayhem (Pen. Code, § 2051), criminal threats (§ 422), and assault by means likely to 

produce great bodily injury (§ 245). On appeal, defendant contends that insufficient 

evidence supports his conviction for aggravated mayhem (count 2), and the abstract of 

judgment must be amended consistent with trial court’s oral pronouncement of judgment

that he was sentenced to life with the possibility of parole on count 2. The Attorney 

General argues that the judgment must be modified, and the abstract of judgment must be 

amended, to reflect that defendant was entitled to receive 83 days of conduct credit 

instead of 84 days. We remand the matter for the trial court to amend the abstract of 

judgment to reflect the trial court’s oral pronouncement that defendant was sentenced to 

life with the possibility of parole on count 2, and to modify the judgment and amend the 

abstract of judgment to reflect that defendant was entitled to receive 83 days of conduct 

credit, for a total of 640 days of presentence custody credit. We otherwise affirm the 

judgment.

 

1 All statutory citations are to the Penal Code unless otherwise noted.
3

BACKGROUND

A. Factual Background

 

1. Prosecution Evidence

a) The Incident on November 4, 2008—Assault by Means 

Likely to Produce Great Bodily Injury (Count 5)

Defendant and Jennifer M. were neighbors who had known each other for many 

years. In about 2008, they had an “unofficial” dating relationship. 

In May 2008, while Jenifer and defendant were seeing each other romantically, 

Jennifer had a baby with another man. In November 2008, Jennifer was living with her 

baby’s father, which situation aggravated defendant. 

On November 4, 2008, as Jennifer was walking home from a store after 

purchasing water to make milk for her child, defendant exited a hole in a nearby gate and 

approached her. Defendant kicked a bag containing the purchased water that Jennifer 

was carrying. Defendant also punched her several times in the face, causing her to fall to 

the ground. While Jennifer was on the ground, defendant kicked her in the arms and 

called her “bitch” and “hoe.” Defendant took her cellular telephone. Jennifer cried and 

yelled for help, but no one responded. She got up from the ground and ran back to the 

store. People from the store drove Jennifer to her home. 

Jennifer’s sister drove Jennifer to the police station, where Jennifer reported the 

incident. Jennifer told Los Angeles Police Officer Asia Hodge that defendant had 

threatened her by saying, “If you’re not going to be with me, you’re not going to be with 

anybody. I’ll kill you first before I let you leave.” Jennifer also told Officer Hodge that 

defendant had threatened to kill her if she got back together with the father of her child. 

Officer Hodge observed a small bruise or cut on Jennifer’s lip, and multiple bruises on 

her forehead and cheeks. 
4

b) The incident on March 12, 2009—Aggravated Mayhem 

(count 2); Criminal Threats (count 3)

On March 12, 2009, Jennifer was still living with the father of her child. On that 

date, at about 8:20 p.m., Jennifer walked up to a gate outside her residence and defendant 

ran towards her. Jennifer tried to run away and jump over the fence of the adjoining 

property, but defendant caught up to her before she could escape. Jennifer tried to hug 

defendant and told defendant that he did not “want to do this.” Defendant punched 

Jennifer “real hard.” Defendant pulled out a “butterfly” knife. Jennifer heard “a click 

sound,” and defendant began stabbing her. Jennifer previously testified at the 

preliminary hearing in this case that defendant said, “‘If you’re not going to be mine, I’m 

going to slice your pretty face off.’” Defendant cut Jennifer across the right side of her 

face. Defendant also stabbed Jennifer in the left arm, chest, and below the left breast. 

Jennifer screamed for help. She was bleeding profusely and was feeling weak. Jennifer 

was standing against a wall, and she slid down the wall, until she eventually fell to the 

ground. 

Jennifer’s screams for help were heard by Samuel Gibson, who went outside his 

house to investigate the matter. When Gibson asked defendant and Jennifer what they 

were doing, defendant told him to mind his own business and leave, and Jennifer told 

Gibson that defendant was stabbing her and pleaded for help. Defendant left the scene 

when Gibson threatened to call police. Gibson brought Jennifer to his home and called 

the police. Defendant was later arrested. 

Jennifer was taken to the hospital where she received staples for some of her 

wounds and eight stitches for her facial cut. Los Angeles Police Department Officer 

Ledesma went to the hospital and spoke to Jennifer. Jennifer stated that during the 

stabbing incident, defendant said, “‘I’m going to kill you. If I can’t have you, no one 

can.’” 

At the time of trial, Jennifer had a scar on her face, which went from the edge of 

her right nostril to the middle of her right cheek. Dr. David Duarte, the trauma surgeon 
5

who oversaw Jennifer’s treatment at the hospital, explained that Jennifer’s facial wound 

required stitches, and had Jennifer never sought medical treatment, she would have had 

“a divot in [her] skin.” 

Dr. Duarte testified that stitches do not prevent scarring because “nothing’s 

guaranteed in medicine.” Even if the stitches are removed within five days, it reduces the 

chances of a scar resulting, or minimizes the scar, but there could still be a scar. 

In Dr. Duarte’s experience, patients with facial lacerations sutured with the type of 

thread used for Jennifer’s facial stitches end up with minimal scarring or no scarring. 

The longer a person waited to remove the sutures, the greater the likelihood of a scar 

developing. If the person waits more than two weeks to remove the sutures, it is very 

likely that a scar will develop. 

According to Dr. Duarte, apparently based on the nurse’s notes contained in 

Jennifer’s medical records, Jennifer was told to return to the hospital in five days to have 

her stitches removed. Dr. Duarte however said that there was no indication in the records 

that she returned to the hospital. 

While at the hospital Jennifer was anxious and took pain medication, including 

Morphine and Dilaudid. She testified that she did not recall that she was told to go back 

to the hospital to have the stitches removed, and said that she did not receive instructions 

about when to go back to remove the stitches. She testified that the hospital staff gave 

her a lot of paperwork, but she never looked through them because she was “emotionally, 

psychologically devastated.” 

Jennifer testified that she did not return to the hospital to have her stitches 

removed because she could not afford it. Approximately two to three weeks after the 

incident, although she was afraid to do so, Jennifer removed her own stitches. 

Los Angeles Police Detective Scarlett Martinez interviewed Jennifer at her 

residence. Jennifer said at that time that before defendant stabbed her, he stated, “‘Fuck 

you, bitch. If you’re not going to be with me, I’m going to slice your pretty face off[.]’” 
6

2. Defendant’s Evidence

Defendant was on probation in a juvenile matter, and therefore he wore a home 

detention ankle bracelet set up to monitor whether he remained within 150 feet of his 

residence.2 There was a 10-minute “leave window,” meaning that if defendant left the 

150-foot radius of his home and returned within 10 minutes, no event would be reflected 

in the monitoring records. 

Brad Collins was employed by the company responsible for monitoring 

defendant’s ankle bracelet while defendant was under home detention. Collins testified 

that according to the company’s records, on March 12, 2009, defendant left his home at 

9:37 p.m., and returned at 9:49 p.m., and defendant left his home again at 10:00 p.m. and 

returned at 10:49 p.m. 

Julie Guillen, who was married to defendant’s cousin, lived in the back house on 

the property where defendant lived with his parents. Guillen testified that on March 12, 

2009, she saw defendant at about 8:00 p.m., was with defendant from about 8:10 through 

8:40 p.m., and shortly thereafter she saw defendant in his room. 

B. Procedural Background

The District Attorney of Los Angeles County filed an information charging 

defendant with attempted murder in violation of section 187, subdivision (a) (count 1);

aggravated mayhem in violation of section 205 (count 2); criminal threats in violation of 

section 422 (count 3); assault by means likely to produce great bodily injury in violation 

of section 245, subdivision (a)(1) (count 5);

3

and attempted criminal threats in violation 

of sections 422 and 664 (count 6). The District Attorney alleged as to counts 1 and 2 that 

defendant personally used a deadly and dangerous weapon within the meaning of section 

12022, subdivision (b)(1). The trial court dismissed count 6 pursuant to section 1118.1. 

 

2 Defendant’s residence was located 279 feet away from Jennifer’s residence. 

3

The information did not contain a count 4. 
7

Following trial, the jury found defendant guilty of aggravated mayhem (count 2), 

and found the deadly and dangerous weapon allegations to be true. The jury also found 

defendant guilty of criminal threats (count 3) and assault by means likely to produce great 

bodily injury (count 5). The jury was unable to reach a verdict on the attempted murder 

(count 1), and that count was dismissed. 

The trial court sentenced defendant to state prison for a term of life, consisting of a 

term of life with the possibility of parole plus an additional one-year term for the weapon 

enhancement on count 2. On count 5, the trial court imposed a middle term of three years 

with the sentence to run consecutively to the sentence imposed on count 2. With respect 

to count 3, the trial court sentenced defendant to the midterm of two years, and the 

sentence was stayed pursuant to section 654. 

The trial court awarded defendant custody credit, and ordered him to pay various 

fees, fines and penalties. Defendant filed a timely notice of appeal. 

DISCUSSION

A. Substantial Evidence Regarding Aggravated Mayhem 

Defendant contends that insufficient evidence supports his conviction for 

aggravated mayhem in count 2. We disagree.

1. Standard of Review

As our Supreme Court stated, “‘When considering a challenge to the sufficiency 

of the evidence to support a conviction, 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 

determine ‘whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in 
8

support of the judgment the existence of every fact the trier could reasonably deduce 

from the evidence.’ [Citation.]” (People v. Edwards (2013) 57 Cal.4th 658, 715.)

“Substantial evidence includes circumstantial evidence and the reasonable 

inferences flowing therefrom.” (People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064.) 

“We ‘must accept logical inferences that the jury might have drawn from the 

circumstantial evidence. [Citation.]’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 

327, 357-358.) In determining whether substantial evidence supports a conviction, “we 

do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary 

to the verdict, or reevaluate the credibility of witnesses.” (People v. Little (2004) 115 

Cal.App.4th 766, 771, citing People v. Jones (1990) 51 Cal.3d 294, 314.)

2. Analysis

Defendant challenges the sufficiency of the evidence supporting the jury’s finding 

that his act of cutting Jennifer’s face with a knife caused the scar on her face. Defendant 

argues that Jennifer was negligent in failing to follow medical advice to have the stitches 

removed in five days, and instead removing them herself after two to three weeks, and 

that negligence constituted an “intervening and/or superseding cause” of the scar on her 

face. 

The trial court instructed the jury, pursuant to CALCRIM No. 800, as follows: 

“The Defendant is charged in count 2 with aggravated mayhem, in violation of Penal 

Code section 205 in connection with the injury to Jennifer M.’s face. . . . [¶] To prove 

that the defendant is guilty of this crime, the People must prove that: [¶] number 1, the 

defendant unlawfully and maliciously disabled or disfigured someone permanently or 

deprived someone else of a limb, organ, or part of her body; [¶] number 2, when the 

defendant acted, he intended to permanently disable or disfigure the other person or 

deprive the other person of a limb, organ, or part of her body and; [¶] number 3, 

under the circumstances, the defendant[’]s act showed extreme indifference to the 

physical or psychological well-being of the other person. [¶] Someone acts maliciously 

when he or she intentionally does a wrongful act or when he acts with the unlawful intent 
9

to annoy or injure someone else. [¶] A disfiguring injury may be permanent even if it 

can be repaired by medical procedures.”

The trial court also instructed the jury, pursuant to CALCRIM No. 240, on 

causation: “An act causes permanent disfigurement if the permanent disfigurement is the 

direct, natural and probable consequence of the act and the permanent disfigurement 

would not have happened without the act or omission. [¶] A natural and probable 

consequence is one that a reasonable person would know is likely to happen if nothing 

unusual intervenes. [¶] In deciding whether a consequence is natural and probable, 

consider all the evidence established by the evidence. [¶] There may be more than one 

cause of permanent disfigurement. An act causes permanent disfigurement only if it is a 

substantial factor in causing the permanent disfigurement. [¶] A substantial factor is 

more than a trivial or remote factor; however, it does not have to be the only factor that 

causes the permanent disfigurement.” 

“It is well established that a crime victim’s contributory negligence is not a 

defense. [Citations.]” (People v. Marlin (2004) 124 Cal.App.4th 559, 569.) A defendant 

may be “‘criminally liable for a result directly caused by his or her act, even though there 

is another contributing cause.’” (People v. Catlin (2001) 26 Cal.4th 81, 156, quoting 1 

Witkin & Epstein, Cal. Criminal Law (3d. 2000) Elements, § 37, p. 243.) “The defendant 

remains criminally liable if either the possible consequence might reasonably have been 

contemplated or the defendant should have foreseen the possibility of harm of the kind 

that could result from his act. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 847.)

The California Supreme court stated, “‘In general, an “independent” intervening 

cause will absolve a defendant of criminal liability. [Citation.] However, in order to be 

“independent” the intervening cause must be “unforeseeable . . . an extraordinary and 

abnormal occurrence, which rises to the level of an exonerating, superseding cause.” 

[Citation.] On the other hand, a “dependent” intervening cause will not relieve the 

defendant of criminal liability. “A defendant may be criminally liable for a result directly 

caused by his act even if there is another contributing cause. If an intervening cause is a

normal and reasonably foreseeable result of defendant’s original act the intervening act is 
10

‘dependent’ and not a superseding cause, and will not relieve defendant of liability. 

[Citation.] ‘[ ] The consequence need not have been a strong probability; a possible 

consequence which might reasonably have been contemplated is enough. [ ] The precise 

consequence need not have been foreseen; it is enough that the defendant should have 

foreseen the possibility of some harm of the kind which might result from his act.’ 

[Citation.]” [Citation.]’ [Citations.]” (People v. Cervantes (2001) 26 Cal.4th 860, 871.)

“[I]t is only an unforeseeable intervening cause, an extraordinary and abnormal 

occurrence, which rises to the level of an exonerating, superseding cause. [Citations.]” 

(People v. Armitage (1987) 194 Cal.App.3d 405, 420-421.) To constitute a sole or 

superseding cause, the victim’s conduct must have been “so unusual, abnormal, or 

extraordinary that it could not have been foreseen. [Citation.]” (People v. Schmies

(1996) 44 Cal.App.4th 38, 52.) Absent such conduct, evidence the victim “may have 

shared responsibility or fault for the accident does nothing to exonerate [a] defendant for 

his role” and “is not relevant.” (Id. at p. 51.) It is generally a question of fact whether an 

independent act is a superseding cause of injury (People v. Morse (1992) 2 Cal.App.4th 

620, 670), “unless undisputed evidence reveals ‘“a cause so remote that a court may 

properly decide that no rational trier of fact could find the needed nexus. [Citations.]”

[Citation.]’ (People v. Cervantes[, supra,] 26 Cal.4th [at pp.] 871-872 [ ].)” (People v. 

Moncada (2012) 210 Cal.App.4th 1124, 1133.) 

In People v. Roberts (1992) 2 Cal.4th 271, the defendant was convicted of the 

murder of his fellow state prison inmate. At trial, the defendant argued there was 

evidence that tended to establish the victim died as a result of incompetent medical care 

and therefore the stabbing was not the proximate cause of the victim’s death. (Id. at p. 

296.) On appeal, the defendant contended that the trial court erred in failing to give his 

proposed modified jury instruction that the stabling was not the proximate cause of the 

victim’s death if the medical care the victim received after the assault amounted to the 

sole cause of his death. (Id. at p. 311.) 

In rejecting defendant’s contention, the Supreme Court stated, “If a person inflicts 

a dangerous wound on another, it is ordinarily no defense that inadequate medical 
11

treatment contributed to the victim’s death. [Citations.] To be sure, when medical 

treatment is grossly improper, it may discharge liability for homicide if the maltreatment 

is the sole cause of death and hence an unforeseeable intervening cause. [Citations.] But 

here the record is devoid of any evidence of grossly improper treatment.” (People v. 

Roberts, supra, 2 Cal.4th at p. 312.) The court held that there was no need to instruct the 

jury on a theory for which no evidence had been presented because the record failed to 

show that the treatment regimen constituted a supervening cause of death. (Id. at pp. 

312-313.)

The jury here reasonably could conclude that Jennifer’s facial scar was a direct, 

natural, and probable consequence of defendant’s act of cutting her face with a knife. 

Her failure not to follow the purported medical advice to have the stitches removed 

within five days did not, as a matter of law, constitute a superseding or independent 

intervening cause of the scar. 

As noted above, we review the evidence in the light most favorable to the 

judgment. (People v. Edwards, supra, 57 Cal.4th at p. 715.) There was conflicting 

evidence whether Jennifer received instructions about when to come back to remove the 

stitches. Dr. Duarte testified that Jennifer was told to return to the hospital in five days to 

have her stitches removed. Jennifer however testified that she did not receive instructions 

about when to come back to remove the stitches. In addition, there was evidence that 

even if she was given instructions about when to come back to remove the stitches, she 

did not comprehend or remember the instructions. When Jennifer was at the hospital, she 

had just experienced a traumatic event, was anxious, and took pain medication. She 

never looked through the substantial amount of paperwork given to her by the hospital 

staff because she was “emotionally, psychologically devastated.” Even assuming 

Jennifer was instructed to return to the hospital to have her stitches removed within five 

days, it was reasonably foreseeable that Jennifer would not do so. Jennifer testified that 

she could not afford to return to the hospital to have her stitches removed. 

In any event, according to Dr. Duarte, removing the stitches in a timely manner 

reduces the chances of a scar resulting, or minimizes the scar, but there could still be a 
12

scar. If she sought no medical treatment, she would have suffered greater disfigurement. 

Moreover, a disfiguring injury may be “permanent” as required by aggravated mayhem, 

even if it can be repaired by medical procedures. (People v. Newby (2008) 167 

Cal.App.4th 1341, 1345-1348.) Defendant intentionally injured and, in effect, said he 

intended to permanently disfigure Jennifer. Certainly the facts support the conclusion 

that defendant showed extreme indifference to Jennifer’s physical well-being. There is 

sufficient evidence to support the aggravated mayhem conviction.

B. Amendment of Abstract of Judgment

Defendant contends, and the Attorney General agrees, that the abstract of 

judgment must be amended to reflect that defendant was sentenced to life with the 

possibility of parole on count 2, in order to accurately reflect the trial court’s oral 

pronouncement of judgment. We agree.

The trial court sentenced defendant to life with the possibility of parole on count 2. 

However, the abstract of judgment erroneously reflects that defendant was sentenced to 

life in prison without the possibility of parole with respect to count 2. 

“[A] trial court’s oral sentence governs if it is different from what appears in a 

minute order or an abstract of judgment [citations] . . . .” (People v. Wynn (2010) 184 

Cal.App.4th 1210, 1221; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3; 

People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, the abstract of judgment 

should be amended to reflect the trial court’s oral pronouncement that defendant was 

sentenced to life with the possibility of parole on count 2.

C. Modification of Judgment and Amendment of Abstract of 

Judgment Regarding Presentence Custody Credit

The Attorney General argues, and defendant concedes, that the judgment must be 

modified, and the abstract of judgment must be amended, to reflect that defendant was 

entitled to receive 83—not 84—days of conduct credit. We agree.
13

Defendant’s counsel advised the trial court that defendant was entitled to 557 days 

of actual custody credit. The trial court then stated, “81 days of good-time/work-time

credit for a total—I’m sorry, 638 days of credit. Again, that’s 557 plus 81 for a total of 

638.” The trial court later corrected this comment, stating, “I miscalculated the goodtime/work-time credits. It’s 84 days of credit, so it’s 648 total.” The minute order, as

well as the abstract of judgment, reflect that defendant was credited with 641 days of 

presentence custody credit, based on 557 days of actual custody and 84 days of good 

time/work time. The trial court’s oral pronouncement of judgment, the minute order, and 

abstract of judgment are in error.

Defendant was in custody for a total of 557 days. A person who is sentenced to a 

life sentence “shall accrue no more than 15 percent worktime credit.” (§ 2933.1, subd. 

(a).) Fifteen percent of 557 days is 83.55 days. Defendant can accrue no more than 15 

percent worktime credit. He therefore is entitled to 83 days of conduct credit. (People v. 

Ramos (1996) 50 Cal.App.4th 810, 815-817.) Thus, the judgment should be modified, 

and the abstract of judgment must be amended, to reflect that defendant was entitled to 

receive 83 days of conduct credit, for a total of 640 days of presentence custody credit. 

(People v. Guillen (1994) 25 Cal.App.4th 756, 764.)
14

DISPOSITION

The matter is remanded for the trial court to amend the abstract of judgment to 

reflect the trial court’s oral pronouncement that defendant was sentenced to life with the 

possibility of parole on count 2, and to modify the judgment and amend the abstract of 

judgment to reflect that defendant was entitled to receive 83 days of conduct credit, for a 

total of 640 days of presentence custody credit. In all other respects, the judgment is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

MOSK, J.

We concur:

TURNER, P. J.

KIRSCHNER, J.

 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.