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People v. Navarro

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 9, 2012
2d Crim. No. B225857 (Cal. Ct. App. Jan. 9, 2012)

Opinion

2d Crim. No. B225857 Super. Ct. No. VA079522

01-09-2012

THE PEOPLE, Plaintiff and Respondent, v. ROBERT RAYMOND NAVARRO, Defendant and Appellant.

Law Offices of John P. Dwyer for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County)

Robert Raymond Navarro was convicted by jury of first degree murder (Pen. Code, §§ 187/189, subd. (a) - count 1); assault with a firearm (§ 245, subd. (a)(2) - count 2); and possession of a firearm by a felon (§ 12021, subd. (a)(1) - count 3). As to count 1, the jury found true the special allegations that appellant personally used (§ 12022.53, subd. (b)) and personally and intentionally discharged (§ 12022.53, subd. (c)) a firearm, causing great bodily harm (§ 12022.53, subd. (d)). As to count 2, the jury found true the special allegation that appellant personally used a firearm (§ 12022.5, subd. (a)(1)).

All further statutory references are to the Penal Code unless otherwise indicated.

Appellant was sentenced to state prison for a total aggregate term of 64 years, 8 months to life. As to count 1, the court imposed a sentence of 25 years to life plus 25 years for the firearm enhancement (§ 12022.53, subd. (d)). As to count 2, appellant was sentenced to a consecutive term of four years (the upper term), to run consecutive to count 1, plus ten years for the firearm enhancement (§ 12022.5, subd. (a)(1)). The court imposed a consecutive term of eight months (one-third the midterm) on count 3. The remaining firearm enhancements were stayed pursuant to section 654.

Appellant claims he was deprived of the effective assistance of counsel and the trial court erred in denying his motion for self-representation. We affirm, but modify the judgment to reflect a recalculation of custody credits.

FACTS


Prosecution

Appellant lived in an apartment complex at 6125 Stafford Avenue in Huntington Park. His girlfriend, Angelica Lopez, lived in the same complex (in a separate apartment) with her mother and two children. On October 25, 2003, at approximately 4:00 p.m., a children's party was taking place on the front lawn of the apartment building. A car pulled up in front of the complex. The victim, Raul Moreno, got out and began walking along a side pathway to reach his apartment at the back of the building. Appellant was standing in the front yard, and followed Moreno, arguing loudly with him. Lopez walked behind the two men and began yelling at appellant to stop.

Cecilia Ibarra entered the complex through the back alley and saw appellant and Moreno arguing. Appellant was suggesting that they fight and said something about shooting each other. Moreno said he did not have a weapon and suggested a fistfight. He then turned away and began walking up a staircase. Appellant shot Moreno and he fell to the ground. A single bullet had penetrated both his legs. Appellant fired four more gunshots at Moreno's head, fatally wounding him.

Lieutenant Alfred Martinez (formerly detective Martinez) testified that he spoke to Ibarra the day of the shooting and their conversation was recorded. Ibarra reported that appellant said to Moreno, "'[t]ake out your gun. Come on bitch, don't be a little bitch, let's blast each other.'" Then appellant said, "'I'm going to show you not to fuck with me.'"

Berta Rivas is the mother of Angelica Lopez, appellant's girlfriend. On the night of the offense, Rivas saw appellant begin arguing with Moreno, and called her then-husband, Orlanda Mazariegos, to intervene. Mazariegos heard gunshots and ran outside. Appellant was holding a handgun and Mazariegos said, "Are you crazy? What did you do?" and grabbed him to prevent his escape. Appellant held the handgun to Mazariegos's chest and screamed, "'Let go of me, or you're also going to die.'" Mazariegos released appellant, who walked to his car and drove away.

Appellant and his brother, Armando Navarro, lived together. On the day of the shooting, Armando had been sleeping and was awakened when some children told him his brother was fighting. He heard gunshots and walked outside. Appellant had a .45 caliber handgun tucked into his waistband. Navarro asked appellant "'[w]hat the fuck did you do?'" He twice asked his brother for the gun, but appellant refused to give it to him.

We refer to Armando by first name because he and appellant share the same surname.

Sergeant John Navarette interviewed Armando at the apartment complex after the shooting. Armando said that, two to three hours earlier, he had seen appellant put firearms into a military-style duffel bag and load it into the trunk of his car. They included an assault rifle, a 9 millimeter Uzi and a .357 or .38 caliber handgun. He might have been carrying a .45 caliber handgun on his person. Armando told Navarette that he was afraid appellant might shoot it out with the police if they tried to apprehend him. At trial, Armando denied telling police that he saw appellant loading a duffel bag containing firearms into his car prior to the shooting. He denied that he was interviewed by the police or that he signed a statement.

Appellant's friend, Elias Khawam, contacted the Huntington Park police department after the shooting. Khawam reported that appellant had called him on October 25, 2003, and said that he had shot someone at his home. He asked for $500 and help in fleeing the country.

Two witnesses testified that appellant had threatened to kill anyone, including his own children, if anyone spoke about the shooting. Lopez, appellant's girlfriend, subsequently moved to National City with her mother and children. Appellant later moved in with them. In 2009, six years after the shooting, National City law enforcement received information that a suspect wanted for a homicide in Huntington Park was living in National City. Officers located appellant and arrested him.

Defense

Appellant's theory at trial was that there was substantial evidence of provocation which could have reduced the killing to second-degree murder or voluntary manslaughter. Defense counsel argued that appellant suspected Lopez was having an affair with Moreno. Lopez ended her relationship with appellant and, later that day, Moreno informed appellant that he was the father of one of Lopez's children. Appellant responded by shooting him.

Lopez testified for the defense. She said that appellant had been her boyfriend for 10 years. At the time of the shooting, they had two children. During her relationship with appellant she had an affair with Moreno, and he might have fathered one of her children. Lopez stated that her relationship with appellant had been steadily deteriorating prior to the shooting. For more than a week they had been arguing with each other. On the day of the shooting, Lopez broke up with appellant. He asked if Moreno was the reason for the break-up, and Lopez said no.

Lopez stated that she was present on the day of the shooting and saw Moreno get out of the car. He and appellant were arguing about her and began yelling at one another. Lopez followed the men into the backyard and, when they reached the stairs, appellant pulled out a gun. Moreno said to appellant, "[y]our second daughter, Abby, is mine." Appellant said, "[f]uck this," and shot Moreno. Lopez acknowledged that she never told law enforcement about the foregoing statements.

Following the shooting, Lopez did not see appellant for three years. He had been living in Mexico for part of the time he had disappeared. In 2006, appellant moved in with Lopez, and she had two more children. At the time of trial, Lopez had been visiting appellant in jail once or twice a month.

After the defense called Lopez as a witness, the district attorney sought permission to cross-examine her. Outside the presence of the jury, the prosecutor stated that he wished to elicit testimony from Lopez that appellant said he had been involved in an uncharged homicide and that he had a prior conviction for domestic violence against another woman. The district attorney argued that this evidence was relevant to prove Lopez's state of mind at the time of the shooting—that she was afraid of appellant—and also went to her credibility as a witness. Defense counsel objected, arguing that he had been presented with no evidence of a prior killing and that the domestic violence conviction was a misdemeanor and irrelevant. The trial court ruled that the evidence was admissible because it showed appellant's propensity for violence and went to Lopez's state of mind on the day of the shooting.

The district attorney stated that there is no requirement of discovery for purposes of impeachment, and the only evidence he had of a prior killing was Lopez's statement to this effect made in a police interview.

Under cross-examination, Lopez testified that she knew in 2003 that appellant had a conviction for domestic violence upon a former girlfriend. She acknowledged that she had denied having had an affair with Moreno, both during her interview with Lieutenant Martinez, and at the preliminary hearing. She denied having told Martinez that appellant had said he had killed someone in the city of Cudahy and not been charged. She stated that she was not afraid of appellant. Defense counsel did not object to admission of the foregoing statements.

Lieutenant Martinez was recalled to impeach Lopez's testimony. He testified that he interviewed Lopez after the shooting. She told him that she was afraid of appellant and thought he might return and harm those who had cooperated with law enforcement. Martinez asked Lopez twice whether she was having an affair with Moreno, and she said she was not. Lopez told Martinez that appellant said he had been involved in a homicide in the city of Cudahy and that he had not been arrested or prosecuted for the crime.

DISCUSSION


Ineffective Assistance of Counsel

Appellant claims he was deprived of the effective assistance of counsel in violation of both the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15.) He contends that his attorney should have objected to admission of the following evidence: (1) that he had committed a homicide in the city of Cudahy; (2) he had been convicted of domestic violence; and (3) he was prepared to engage in a shootout with police if they arrested him. Appellant asserts that defense counsel should have objected to admission of this evidence because its probative value was outweighed by its prejudicial effect. (Evid. Code, § 352.)

To prevail on a claim for ineffective assistance of counsel, the defendant must show that counsel's performance was deficient, and the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Prejudice results when there is a reasonable probability the result would have been different absent counsel's ineffective representation. (Id. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.) Counsel's performance is measured against the standard of a reasonably competent attorney. (People v. Andrade (2000) 79 Cal.App.4th 651, 659-660.)

1) Prior Uncharged Homicide and Domestic Violence Conviction

Appellant argues that defense counsel should have objected to admission of both of these items of evidence as unduly prejudicial. (Evid. Code, § 352.) He contends that, because defense counsel objected to admission on the basis that the evidence was irrelevant, there was no tactical reason why he would not also have objected under Evidence Code section 352.

Appellant claims that failing to articulate the proper basis for exclusion of the evidence constituted the ineffective assistance of counsel, citing People v. Asbury (1985) 173 Cal.App.3d 362. There, defense counsel objected to felony murder instructions based upon insufficient evidence but did not object on collateral estoppel grounds. The appellate court determined that this constituted ineffective assistance because there was no reason why counsel would have failed to make this objection, unless he was unaware such an objection existed. (Id. at pp. 365-366.) Likewise, we can discern no reason for defense counsel's failure to make an Evidence Code section 352 objection here.

Appellant cites to People v. Guizar (1986) 180 Cal.App.3d 487, to support his claim of prejudice. There, the court found that defense counsel's performance was objectively unreasonable because he had failed to object to admission of a taped statement in which a witness said that the defendant had committed other murders. The defendant was on trial for murder and it was undisputed that he had committed the offense. The sole issue was the degree of his responsibility for the killing. The court found it "inconceivable" that defense counsel did not object to admission of this evidence on the ground that it was more prejudicial than probative. (Id. at p. 492.)

Appellant contends that there was "not the slightest suggestion" that Lopez testified due to her fear caused by the uncharged homicide or domestic violence conviction. Defense counsel noted that, at the time of trial, Lopez had given birth to two more children with appellant and was visiting him in jail. Appellant asserts that admission of Lopez's statement regarding the uncharged homicide could have caused the jury to convict him as punishment for the uncharged offense. We conclude that defense counsel should have objected on Evidence Code section 352 grounds to both pieces of evidence, given their inflammatory nature.

While appellant has established that counsel's performance was deficient; he has not shown prejudice. Had the statements been excluded, there existed overwhelming evidence to support the jury's verdict. When appellant saw Moreno arrive at the apartment complex, he began arguing with him, and followed him to the rear of the building. A witness heard him challenge Moreno to a gunfight. Appellant then shot Moreno in the legs, causing him to fall to the ground. Once he was incapacitated, appellant shot Moreno in the head four times at close range. This evidence alone supports the jury's finding of premeditation. Appellant fled the scene in a car that had been loaded with firearms. He tried to dissuade witnesses from cooperating with law enforcement by threatening to kill his children if anyone reported the offense. It is unlikely appellant would have obtained a more favorable outcome had the complained-of statements been excluded. His ineffective assistance of counsel claim fails.

2) Plan for Shootout

Appellant's brother, Armando, denied at trial having told police that appellant had put a duffel bag containing several firearms into the trunk of his car two hours before the shooting. Sergeant Navarette was called to impeach Armando. In his closing, the prosecutor stated that this evidence supported its theory of premeditation. Appellant argues that Sergeant Navarette's testimony was inadmissible evidence of appellant's propensity to commit violent offenses with a firearm. He also asserts an ineffective assistance of counsel claim for failure to object to either Navarette's testimony or the prosecutor's statement in closing.

Evidence Code section 1101, subdivision (a) provides, "Except as provided in this section and in Sections 1102, 1103, 1108 and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specific occasion." Evidence that is otherwise inadmissible may be admitted when relevant to prove a fact, such as "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ." (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393.)

Armando's statement was admissible both to show that appellant had premeditated the killing and to impeach his credibility. (Evid. Code, § 1101, subd. (c) ["Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness"].) It was highly probative of his state of mind because it came from appellant's own brother immediately after the shooting. After finding appellant holding the gun, Armando demanded that appellant give it to him, but he refused. Armando's statements to Navarette that he had observed appellant loading firearms in the car and was worried that he would engage in a shootout were related to facts which occurred shortly before he spoke to Navarette. This testimony was also admissible to impeach Armando's trial testimony that he had never made such a statement to Navarette. (See Evid. Code, §§ 1235, 770.) To the extent that appellant makes an ineffective assistance claim for defense counsel's failure to object to Navarette's testimony, this argument fails. The evidence was admissible, so an objection would have been meritless.

Faretta Motion

Appellant claims the trial court abused its discretion by denying his Faretta motion for self-representation. Appellant had made a Marsden motion, which the court denied. Defense counsel then said, "One more thing" and appellant stated, "Yes, sir. Can I go pro per?" The trial court stated, "No. We have a jury, it's too late." Appellant argues that his Faretta motion was both unequivocal and timely. He asserts that the court made no findings concerning the merits of his motion. Rather, it was summarily denied because jurors were in the hallway awaiting jury selection.

Faretta v. California (1975) 422 U.S. 806.

People v. Marsden (1970) 2 Cal.3d 118.
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A Faretta motion cannot arise from a defendant's annoyance with counsel nor the court's denial of a Marsden motion. (People v. Marshall (1997) 15 Cal.4th 1, 21-23.) A Faretta motion that is not made within a reasonable time prior to trial is addressed to the sound discretion of the trial court. (People v. Marshall (1996) 13 Cal.4th 799, 827.) When a defendant asserts the right to self-representation on the eve or day of trial, the court has discretion to deny the request. (See People v. Valdez (2004) 32 Cal.4th 73, 102-103; People v. Horton (1995) 11 Cal.4th 1068, 1110; People v. Clark (1992) 3 Cal.4th 41, 98.) Appellant's Faretta motion followed on the heels of the denial of his Marsden request. Moreover, he made no indication that he was prepared to immediately proceed to trial. (See People v. Tyner (1977) 76 Cal.App.3d 352, 354-355 [denial of Faretta motion was reversible error where defendant indicated he was ready to proceed to trial, prepared to cross-examine witnesses, had identified his defense theory, and had not requested substitute counsel].)

Even had appellant's motion been timely, it would have been properly denied as equivocal. Where a motion is timely, the court must consider the factors pursuant to People v. Windham (1977) 19 Cal.3d 121. These include the quality of counsel's representation, the defendant's proclivity to substitute counsel, the reasons for the request, the length and stage of proceedings and the delay that might result following the granting of such a motion. (Id. at p. 128.) Appellant argues that there "was no basis to conclude" that the trial court considered his proclivity to substitute counsel nor was there reason to believe his request would have disrupted trial, because he had not requested a continuance. A trial court need not expressly state that it has considered the Windham factors if the record contains sufficient reasons to indicate its "implicit consideration" of them. (People v. Scott (2001) 91 Cal.App.4th 1197, 1206.)

The court had just denied appellant's Marsden request, so it was aware that he was dissatisfied with counsel. He immediately made a Faretta request, but did not indicate he was prepared to proceed to trial. It is likely that appellant's request was an expression of dissatisfaction with the court's ruling, rather than a true desire for self-representation. During the Marsden hearing, the court described defense counsel as "a very good attorney." The court was clearly aware of the quality of appellant's representation and the length and stage of the proceedings, given its statement that a jury was waiting for voir dire. We conclude that appellant's Faretta motion was both equivocal and untimely. There was no abuse of discretion.

Award of Custody Credits

Appellant was arrested on September 3, 2009 and sentenced on July 6, 2010. The trial court miscalculated his time spent in custody and awarded him presentence custody credit of 277 days. (§ 2900.5, subd. (a).) Appellant argues, and the People agree, that he is entitled to 307 days of custody credit. Due to his murder conviction, he is not entitled to any good time/work time credit. (§ 2933.2.)

DISPOSITION

The judgment is modified to reflect an award of presentence custody credit of 307 days. The trial court shall prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J. We concur:

YEGAN, Acting P.J.

PERREN, J.

Philip H. Hickok, Judge


Superior Court County of Los Angeles

Law Offices of John P. Dwyer for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.


Summaries of

People v. Navarro

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 9, 2012
2d Crim. No. B225857 (Cal. Ct. App. Jan. 9, 2012)
Case details for

People v. Navarro

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT RAYMOND NAVARRO, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

Date published: Jan 9, 2012

Citations

2d Crim. No. B225857 (Cal. Ct. App. Jan. 9, 2012)