People v. Navarette
| Decision Date | 27 October 2016 |
| Docket Number | F069534 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jesus NAVARETTE, Defendant and Appellant. |
Certified for Partial Publication.*
Gordon S. Brownell, St. Helena, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Max Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
Smith, J.Jesus Navarette appeals from his convictions and sentence for infliction of corporal injury on a cohabitant or coparent, false imprisonment, making criminal threats, attempting to dissuade a witness from testifying, and dissuading a witness from prosecuting a crime. He contends the trial court abused its discretion in admitting evidence of a prior domestic violence arrest under Evidence Code section 1109, a claim we reject. He also argues the court erred in not applying Penal Code 1section 654 to his sentence for dissuading a witness from prosecuting a crime. The People concede the point, and we agree. Finally, Navarette challenges the trial court's finding that his prior conviction for a homicide offense in the State of Sinaloa, Mexico, constituted a serious felony within the meaning of the serious felony sentence enhancement statute, as well as the three strikes law. We conclude that, under applicable state and federal law, the trial court's finding as to Navarette's prior conviction is not supported by substantial evidence. Accordingly, we strike the trial court's finding. The matter is remanded for resentencing consistent with this opinion. The judgment is affirmed in all other respects.
FACTS AND PROCEDURAL HISTORY
On March 13, 2014, Navarette was charged by a first-amended information filed in the Tulare County Superior Court with attempted second-degree robbery (count 1, §§ 211, 664); assault with a firearm (count 2, § 245, subd. (a)(2)); criminal threats (count 3, § 422); attempting to dissuade a witness from testifying (count 4, § 136.1, subd. (b)(2)); and dissuading a witness from prosecuting a crime (count 5, § 136.1, subd. (b)(2)). The information alleged as to counts 1, 2, and 3 that Navarette personally used a firearm (§ 12022.53, subds. (a), (b) & (c)) and also alleged as to all counts that he had a prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)) in that he had been convicted of murder in the State of Sinaloa, Mexico, in 2006.
The matter proceeded to jury trial on April 1, 2014. On April 3, 2014, the court granted a defense motion to dismiss count 1; count 2 was dismissed by the People. The court also granted the prosecution's oral motion to amend the information to add a count of infliction of corporal injury on a cohabitant or coparent (count 6, § 273.5, subd. (a)), a count of false imprisonment (count 7, § 236), as well as allegations, with respect to each of these counts, that Navarette personally used a firearm (§ 12022.5, subd. (b)(2)). That same day, the jury found Navarette guilty on counts 3 through 7 and found the special firearm allegations related to counts 3, 6, and 7 to be true (the judge subsequently ordered the firearm allegations to be “modified by interlineation to PC12022.5(a)”).
On April 11, 2014, the court found true the prior strike allegations as to counts 3, 4, and 5; however, the court subsequently appeared to indicate that the strike prior applied to “each of the counts” of conviction notwithstanding that it was only alleged in connection with counts 3, 4, and 5. Although the court did not expressly address the prior serious felony allegation, the minute order of the proceedings reflects that the court found it true as to counts 3 and 4.
On June 4, 2014, the court sentenced Navarette to an aggregate term of 27 years in prison. The court imposed a term of 23 years on his conviction for infliction of corporal injury to a cohabitant or coparent in count 6, as follows:
the upper term of four years, doubled to eight years based on the strike prior (§ 1170.12, subd. (c)(1)), plus a consecutive five-year term based on the prior serious felony conviction (§ 667, subd. (a)(1)), and a consecutive 10–year term for the firearm enhancement (§ 12022.5, subd. (a)). The court further imposed consecutive sentences of 16 months (1/3 the midterm, doubled on account of the strike prior) for Navarette's convictions in counts 3, 4, and 5. Finally, the court sentenced Navarette to the upper term of six years on his conviction for false imprisonment in count 7, which was stayed pursuant to section 664 (). (See § 237, subd. (a) [].)
Factual summary
On the night of August 3, 2013, Navarette followed his ex-girlfriend, Anami Alvarado, as she drove home from the store. He contacted her by cell phone asking her to pull over, which she did.2 Navarette approached her car carrying a rifle, demanded she get out of the car, and attempted to grab her car keys from the ignition. When Alvarado resisted, Navarette punched her on the left side of her face and, as she drove off, fired two rounds into the ground. Alvarado contacted the Tulare County Sheriff's Department and gave a statement against Navarette. Navarette was then arrested, jailed, and charged in the instant case.
Navarette subsequently threatened Alvarado from jail, over the phone, in letters, and during personal visits. He explicitly directed Alvarado to drop the charges and told her how to change her prior description of events should the case proceed to trial. At trial, Alvarado testified as directed by Navarette, but her prior statements to law enforcement personnel were presented to the jury through the testimony of the relevant personnel.
Alvarado's trial testimony
Alvarado began a relationship with Navarette in 2008. They lived together in Earlimart off and on and were the parents of a two-year-old daughter. Although not legally married, Alvarado considered Navarette her husband. Eventually they separated.
After they separated, on the evening of August 3, 2013, Alvarado drove to Earlimart with her daughter to buy food. On the way home, she noticed a white car following her with Navarette in the passenger seat.
Navarette contacted her by cell phone telling her to stop. She complied, pulling over by a house in Teviston. As Navarette approached, she lowered her window halfway. Navarette told Alvarado he wanted to reconcile and asked her to turn the car off and to get out. Alvarado did not turn the car off or get out. Navarette stuck his hand through the window, asking her to lower it so they could speak. Alvarado did not want to speak to him and pushed his hand away.
Navarette then tried to open Alvarado's car door but it was locked. He grabbed Alvarado's arm as they continued to argue. Alvarado's car was blocked by the white car and some trash cans. A man came out of the driver's side of the white car carrying a rifle. Alvarado recognized him as one of Navarette's friends. The man argued with Navarette then shot the rifle in the air twice. Navarette and the man then got back in the white car. Alvarado fled in her car.
Alvarado drove to the Pixley sheriff's station. On the way there, she called 911. She remembered speaking to Deputy Cruz at the sheriff's station but did not remember the details of the conversation because she was very nervous. She denied telling Deputy Cruz that Navarette reached into her vehicle and tried to remove the keys. She denied that Navarette punched her in the left side of the face and that he fired the rifle into the ground. She denied telling Deputy Cruz that Navarette told her he would kill her father that evening. Alvarado also denied that Navarette had called her while she was at the sheriff's station.
Alvarado denied that Navarette called her from jail on August 6, 2013, directing her to refuse to testify against him and to tell the police he did not fire the rifle. Alvarado stated she had spoken to Navarette while he was in jail and had visited him there.
Alvarado also denied that she told the Tulare County District Attorney's Office Investigator Martha Rodriguez that she was afraid of Navarette hurting her if he got out of jail. She denied telling Investigator Rodriguez that Navarette had been offered a job running a drug trafficking operation and that he had threatened to use hit men under his control to kill her family in Mexico. She also denied telling Investigator Rodriguez that when she went to visit Navarette he would hold drawings up to the window with messages written at the bottom regarding how she should testify in court.
Other prosecution evidence
On August 3, 2013, Tulare County Sheriff's Deputy Nathan Cruz was dispatched to the intersection of Avenue 72 and Road 132 in Teviston to investigate a report of shots fired. Shortly thereafter, Alvarado arrived at the sheriff's station in Pixley and Deputy Cruz returned to talk to her.
Alvarado told Deputy Cruz that Navarette was her ex-boyfriend. Earlier that evening, Alvarado went shopping in Earlimart. While she was in the store, she received a call from Navarette. Navarette told Alvarado that he wanted to talk. Alvarado declined as their relationship had ended in July 2012. Navarette said he would follow her and she should “watch her back.”
Alvarado left the store to return home, taking a route that she did not normally use. She got another call from Navarette when she was near the intersection of Avenue 72 and Road 132 in Teviston. Navarette told her he was in the car behind her and she should pull over. Alvarado saw a white Ford Mustang behind her.
Alvarado pulled over in the vicinity of the intersection, and the white Mustang stopped behind her. Navarette got out...
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