Opinion
A151606
09-19-2019
THE PEOPLE, Plaintiff and Respondent, v. JORGE LEON NAVARRO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR302301)
Defendant Jorge Leon Navarro appeals from the judgment following his conviction by a jury for making criminal threats (Pen. Code, § 422; count 1); shooting at an inhabited dwelling (id., § 246; count 2); and attempted willful, deliberate, and premeditated murder (id., §§ 187, subd. (a), 664, subd. (a); count 3). Navarro seeks reversal of his conviction for deliberate and premeditated attempted murder on the grounds that the evidence was insufficient to prove intent to kill or deliberation or premeditation. We affirm.
BACKGROUND
On February 13, 2014, an information was filed charging Navarro and codefendant Daniel Lopez with making criminal threats, shooting at an inhabited dwelling, and attempted murder, with the allegation that the attempted murder was willful, deliberate, and premeditated (Pen. Code, § 664, subd. (a)), and a serious felony (id., § 1192.7, subd. (c)). On October 28, 2014, Navarro's and Lopez's trials were severed. Navarro's trial commenced on July 8, 2015, and on July 16, the jury convicted him on all counts and found the allegation of willfulness, deliberation, and premeditation true.
I. The Prosecution's Case
On September 7, 2013, Jose R. was outside his downstairs apartment in a four-unit building. Navarro and Lopez drove up in a blue pickup truck, and Lopez got out and questioned whether Jose had been saying Lopez was "daring to shoot" him. Jose denied he had said this, and Lopez began hitting him. Jose defended himself and knocked Lopez to the ground. Navarro then got out of the truck and started hitting Jose on the back. Lopez and Navarro left when a neighbor broke up the fight. Before leaving, Navarro said to Jose "that he was going to bring a gun and he was going to shoot at [Jose], . . . to watch out."
A neighbor, Victor A., heard Navarro threaten, " 'We are going to go get a gun to kill you . . . .' " Jose's cousin Diana R. testified she heard Lopez and Navarro yelling at Jose that they were going to return with a gun and that Jose should wait for them. Diana took Jose with her to a dance in Sacramento to avoid further confrontation with Navarro and Lopez. Several hours later, while Jose was still out with Diana, Victor saw a white car approach the apartment building with Lopez driving and Navarro in the passenger seat. Victor saw Lopez exit the car, have a shotgun handed to him, and then Lopez fired the shotgun twice and yelled " 'arriba.' " Lopez got back into the car with Navarro and they left.
On the night of September 8, 2013, Jose was outside his apartment complex when he saw a white car approach. Jose saw Lopez in the car with another person. Jose ran into his apartment when he heard friends warn, " 'Oh, they came back again,' " and he heard shots minutes later. Jose came back out about 10 minutes later after the car left. The white car returned again and stopped in front of Jose's apartment. Victor, Jose, and Diana witnessed Lopez exit the car and start shooting. Jose testified Lopez pointed a gun at him and yelled "he was going to kill us." From his balcony, Victor saw Lopez shoot at Jose. From her apartment building, Diana saw Lopez point a gun and shoot at Jose's apartment building. Diana saw one shot hit a tree in front of the building. Another hit Jose's upstairs neighbor's window.
Victor testified he could not see from his upstairs balcony whether there was another person in the car with Lopez. Jose saw a second person but testified he could not see exactly who it was. Diana saw Navarro driving. She testified that the street lights were on and Lopez "left the [car] door open" and "the car lights were shining on [Navarro] and you could see him perfectly. I could see the face of Jorge Leon [Navarro]." Jose ran into his apartment and later hid in the parking lot behind his building. After the shots were fired, Diana heard police sirens and saw Lopez return to the white car, which "took off . . . ."
When Jose spoke with the police on September 9, 2013, he identified Navarro as having been in the car with Lopez on September 8 and he picked Navarro out of a photo lineup. Victor provided the police with a piece of cardboard on which he had written Navarro's name and the license plate number 4BDV869, which belonged to a white car Victor had seen Navarro drive. Navarro's brother, Oscar L., testified that he owned the car and often left the keys in the house he shared with Navarro and their parents. Oscar was in Davis on the night of September 7, and he was not using his car on the night of September 8.
The court read the jury the parties' stipulation that: "If Officer Joseph Strickland were called to testify, he would testify that on September 8, 2013, he went to the area of Stratford Avenue and Newgate Way in Dixon, California . . . , [and] he collected an extended [sic] shotgun wad in front of Apartment B at 295 Newgate Way . . . . [¶] [He] also collected a shotgun shell at the corner of Stratford Avenue and Newgate Way near the stop sign . . . ."
In closing, the prosecution argued that Navarro was angry that he did not get to finish the fight with Jose and that he threatened Jose's life. Navarro followed through with his threat by aiding and abetting Lopez in shooting at the apartment complex on September 7 when he drove Lopez to the scene and handed Lopez the gun, and by aiding and abetting attempted murder on September 8 by driving Lopez to the scene in Navarro's brother's car. The evidence—including Navarro's threat and returning to Jose's home with a gun—established Navarro's intent to kill Jose.
II. Defense Case
The defense called Juan M., who witnessed the fight between Navarro, Lopez, and Jose on September 7. Juan testified that later on the night of September 7, he saw Lopez exit a white car screaming and "pull[] a shotgun out" and "fire[] one shot into the sky." Lopez was "telling them to come out, that he was going to show them what he really was. And he fired one shot into the sky." Juan testified Lopez was "trying to like maybe scare them." Juan did not see anyone else in the car. The next night, September 8, Juan heard gunshots outside his house and saw Lopez get out of the same white car as the previous night and start "shooting the shotgun towards people." Jose and others were outside at the time. Juan testified there was another person in the car but he did not see who was driving. When asked if he saw Lopez shoot toward Jose, Juan initially said, "He was aiming towards everybody," and then, "Not exactly, to be honest. But he was because there was [sic] a lot of people. It wasn't just him. There was [sic] a lot of people." Juan then denied that he saw Lopez point the shotgun near where Jose was.
In closing, the defense argued that the prosecution had failed to prove beyond a reasonable doubt that Navarro was present at the shootings or that he aided and abetted Lopez. The defense further argued there was a lack of evidence to establish Lopez and Navarro intended to kill Jose. According to the defense, the facts that Lopez shot from across the street, did not pursue Jose, and did not hit anyone, at a minimum, raised a reasonable doubt as to the intent to kill Jose.
III. Verdict and Sentencing
On July 16, 2015, the jury convicted Navarro on all counts and found the allegation of willfulness, deliberation, and premeditation true. On June 1, 2017, Navarro was sentenced to seven years on count 2, a concurrent two-year term on count 1, and life with the possibility of parole on count 3.
DISCUSSION
On appeal Navarro challenges his attempted murder conviction. He argues there is insufficient evidence that Lopez took a direct step toward killing Jose, that Lopez and Navarro intended to kill Jose, and that Navarro deliberated and premeditated the attempted killing. Navarro contends the only reasonable conclusion from the record is that Lopez and Navarro intended to terrorize, but not to kill, Jose.
" 'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' " (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.] To be guilty of a crime as an aider and abettor, a person must 'aid[] the [direct] perpetrator by acts or encourage[] him [or her] by words or gestures.' [Citations.] In addition . . . , the person must give such aid or encouragement 'with knowledge of the criminal purpose of the [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of,' the crime in question. [Citations.] When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person 'must share the specific intent of the [direct] perpetrator,' that is to say, the person must 'know[] the full extent of the [direct] perpetrator's criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator's commission of the crime.' [Citation.] Thus, to be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill. [Citation.]" (People v. Lee (2003) 31 Cal.4th 613, 623-624.)
Regarding the attempted murder charge, the jury was instructed with CALCRIM No. 600, as follows: "To prove that the defendant is guilty of Attempted Murder, the People must prove that: 1. Daniel Lopez took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. Daniel Lopez intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing the murder, then that person is not guilty of attempted murder."
Navarro argues a reasonable jury could not conclude beyond a reasonable doubt that Lopez intended to kill Jose and took a direct step toward doing so. Rather, the evidence was that on September 7, Lopez shot in the air, and on September 8, one shot hit a tree and a second shot hit a second-floor apartment window, after Jose ran inside his downstairs apartment. Navarro argues that at the time Lopez shot toward the apartment building, Jose "was safely inside his apartment" and therefore "[t]he two shots fired at the exterior of the building . . . could not have been viewed by a reasonable juror as proof that . . . Lopez took a direct step towards killing [Jose]." Instead, such conduct was evidence only of Lopez's intent to terrorize Jose.
Navarro acknowledges that Victor testified that Lopez " 'shot at' " Jose. Navarro asserts Victor's testimony is " 'inherently improbable' " when viewed in light of the testimony of Jose and Diana, and therefore Victor's testimony cannot constitute substantial evidence. Jose testified that Lopez pointed the gun at him twice. Diana testified that Lopez shot at Jose's apartment building. Because each witness had a different vantage point (Victor on his balcony, Jose outside running from the shooter, and Diana inside her apartment), we do not view their testimony as necessarily inconsistent. Moreover, "[t]he testimony of a single witness, if believed by the fact finder, is sufficient to prove any fact," and witness credibility determinations are the exclusive province of the fact finder. (People v. Kerley (2018) 23 Cal.App.5th 513, 530.)
"[O]ur sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.]" (People v. Lashley (1991) 1 Cal.App.4th 938, 946.) Multiple witnesses saw the fight on September 7 and heard Navarro threaten to shoot or kill Jose or to return with a gun. Victor identified Navarro as being in the white car with Lopez on September 7. Jose testified that on September 8, Lopez pointed the gun at him twice. Victor testified Lopez shot at Jose on September 8. Diana identified Navarro as being the driver of the white car from which Lopez exited and began shooting on September 8. Further, the jury heard evidence that shotgun wadding was found outside Jose's apartment and that one shot hit an upstairs neighbor's window. We reject Navarro's argument that the evidence only supports a finding of intent to terrorize Jose. Reversal is not warranted merely because the evidence might also be reasonably reconciled with a contrary finding. (People v. Dominguez (1995) 38 Cal.App.4th 410, 421.)
Viewing the evidence in the light most favorable to the judgment, we conclude that a rational jury could find beyond a reasonable doubt that Navarro and Lopez intended to kill Jose and took a "direct but ineffective step toward killing" him (CALCRIM No. 600) when Lopez and Navarro drove to Jose's home and Lopez shot in the direction of Jose and his apartment building. Further, based on the evidence, a rational jury could find that Navarro aided Lopez by acts or encouragement with the knowledge of Lopez's intent to kill Jose. (People v. Lee, supra, 31 Cal.4th at pp. 623-624.)
We further find the evidence—including Navarro's threat to Jose on September 7 and his returning to Jose's home with Lopez and a loaded weapon in his brother's car—supports the jury's finding that Navarro premeditated and deliberated the attempted murder. (See People v. Lee, supra, 31 Cal.4th at p. 624 [deliberation and premeditation entail careful thought, weighing of considerations, and preexisting reflection].)
Finally, Navarro argues that his due process rights were violated because his conviction is not supported by sufficient evidence. Having found substantial evidence supports the verdict, we reject Navarro's due process argument.
DISPOSITION
The judgment is affirmed.
/s/_________
Wick, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Fujisaki, J.
Judge of the Superior Court of Sonoma County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------