People v. Navarro

• Decision Date: 01 May 2013
• Docket Number: B235448
• Citation: 152 Cal.Rptr.3d 109,212 Cal.App.4th 1336
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David NAVARRO, Defendant and Appellant.

212 Cal.App.4th 1336

152 Cal.Rptr.3d 109

The PEOPLE, Plaintiff and Respondent,

v.David NAVARRO, Defendant and Appellant.

B235448

Court of Appeal,

Second District, Division 4, California.

Filed January 22, 2013

Review Denied May 1, 2013

Certified for Partial Publication.^*

APPEAL from a judgment of the Superior Court of Los Angeles County, Christopher G. Estes, Judge. Affirmed as modified and remanded with directions. (Los Angeles County Super. Ct. No. MA048064)

Law Offices of Helen Simkins Irza, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

MANELLA, J.

Appellant David Navarro was convicted of a number of charges related to shooting at a cohabitant from outside their mutual dwelling and evading arrest. On appeal, he contends: (1) his conviction of assault with a firearm was not supported by substantial evidence; (2) the statute under which he was convicted of dissuading a witness violates the First Amendment and is fatally uncertain or vague; (3) the instructions given to define the offense of dissuading a witness did not save it from unconstitutionality; (4) by allowing testimony to be read to the jurors in the jury room, the trial court violated his constitutional and statutory rights to be present during all critical phases of trial and to a public trial; and (5) his presentence custody credits were miscalculated. He also seeks review of the trial court's in camera review of documents produced in response to his Pitchess motion.¹ In the published portion of the opinion, we reject his challenge to the sufficiency of the evidence and his constitutional challenge to Penal Code section 136.1, subdivision (b)(1).² In the unpublished portion, we correct the judgment to reflect the proper custody credits, but otherwise reject his challenges and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Information

Appellant was charged by information with attempted murder (§ 1192.7, subd. (c), count one); assault with a semiautomatic firearm (§ 245, subd. (b), count two); shooting at an inhabited dwelling (§ 246, count three); corporal injury to a cohabitant (§ 273.5, subd. (a), count four); child abuse (§ 273a, subd. (a), counts five and six); preventing or dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1), count seven); evading an officer (Veh. Code, § 2800.2, subd. (a), count eight) and negligent discharge of a firearm (§ 246.3, subd. (a), count nine).³ With respect to counts one, two, and six, it was further alleged that appellant personally used and/or discharged a firearm within the meaning of sections 12022.5, and/or 12022.53, subdivisions (b) and (c), causing the offenses to become serious felonies under sections 667.5, subdivision (c), and 1192.7, subdivision (c).

B. Evidence at Trial

Appellant had been living with Liseth Acosta for 10 years. They had two children. The family moved to Palmdale in 2009, where they lived with Acosta's mother. After losing his job due to an injury some years earlier, appellant had been unable to find stable employment, which caused him to be depressed and led the couple to quarrel.

On January 20, 2010, Acosta walked into the master bedroom, where appellant and the two children were lying on the bed watching television. Appellant had been drinking. Acosta went into the closet, appellant followed, and the two argued about some revealing underwear Acosta had purchased. Appellant head-butted Acosta, injuring the area around her eye.⁴

Acosta told appellant to leave, but he refused. Using a cordless phone, Acosta called the Sheriff's Department. She told the operator that appellant had “butted [her] in the head” and refused to leave.⁵ The operator promised to send a deputy and told her to stay on the line. Appellant grabbed the phone from Acosta, took the battery out and put the phone in the closet. He then walked through the laundry room, into the garage, and out toward his car in the driveway. Acosta followed and told appellant to give her the house keys. Appellant ignored her, while appearing to look for something in his car. After a brief period, Acosta walked back into the house through the laundry room, closing and locking the door behind her. As she left the laundry room, she heard a gunshot and a bullet passed through the door she had just closed.⁶

Acosta called the children and her mother into the kitchen and told them to get down on the floor, while she called 911 using her cell phone. ⁷ She reminded the operator she had called earlier and stated “he has a gun now” and was “shooting something.” She said, “[P]lease hurry up, he's coming ... I think he's trying to come through the back now. I think he's drinking....” “He's trying to come back inside the house.” While she was on the line with the operator, appellant called and told her to call and tell the deputies that “everything is fine.” She told him to turn himself in because she was not going to lie.

Shortly thereafter, Deputy Christopher Conley arrived and interviewed Acosta. Acosta said appellant “headbutted” her, indicating “that it was very intentional.” The deputy observed redness and swelling near Acosta's right eye.

J.G., a teenager who lived across the street, heard a loud noise and looked out his bedroom window. He saw appellant standing in the driveway near the garage. As J.G. was watching, appellant shot into the garage. Appellant then walked back and forth nervously, going into and out of the garage and around the side of the house. J.G. saw a woman peer out of a window of the house. Appellant fired a shot toward the sky. After moving around nervously for a bit longer, getting into and out of his car and starting and turning off the engine, appellant drove away.

Because Acosta had provided a description of appellant's car during the 911 call, deputies were able to locate and identify him driving on a nearby highway. Appellant ignored instructions to pull over and was arrested in Anaheim after a chase lasting more than an hour at speeds of up to 90 miles per hour.⁸

Deputies found two expended cartridges in the driveway. The cartridges were from a .380 automatic handgun. When arrested, appellant had gunshot residue on his hands. Deputies found no gun in the car, but the passenger window, which had been intact when the chase started, was broken from the inside.

Appellant did not testify and presented no evidence.

C. Verdict and Sentencing

The jury found appellant not guilty of attempted murder (count one). It found him guilty of assault with a semiautomatic firearm (count two), shooting at an inhabited dwelling (count three), witness intimidation (count seven), evading an officer (count eight), and negligent discharge of a firearm (count nine). With respect to counts four (corporal injury to a cohabitant), five and six (child endangerment), the jury found appellant guilty of the lesserincluded offenses of battery against a child's parent (§ 243, subd. (e)(1)) and willful cruelty to a child (§ 273a, subd. (b)). With respect to count two, the jury found true that appellant personally used a firearm within the meaning of section 12022.5, subdivision (a).

The court sentenced appellant to a term of 21 years in state prison. The sentence consisted of 19 years on count two (the upper term of nine years, plus ten years for the section 12022.5, subdivision (a) firearm enhancement), a concurrent five-year term on count three, a concurrent one-year term on count four, concurrent six-month terms on counts five and six, a consecutive two-year term on count seven, and concurrent two-year terms on counts eight and nine. Appellant received 538 days of presentence custody credits.

DISCUSSION

A. Assault: Sufficiency of the Evidence

Appellant contends there was insufficient evidence to show he had the necessary mental state to commit assault because the prosecution presented no evidence that he had actual knowledge that a bullet shot at a door would penetrate it and threaten a person standing on the other side. Appellant misperceives the prosecution's burden, which was met when substantial evidence established that he knowingly committed acts which resulted in physical force being applied toward the victim which a reasonable person would know was likely to result in injury.

Section 240, enacted in 1872, defines assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” The necessary mens rea to support assault was set forth in People v. Williams (2001) 26 Cal.4th 779, 787, 111 Cal.Rptr.2d 114, 29 P.3d 197: “Based on the 1872 definition of attempt, a defendant is only guilty of assault if he intends to commit an act ‘which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences.’ [Citation.] Logically, a defendant cannot have such an intent unless he actually knows those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. [Citation.] In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur.” (26 Cal.4th at pp. 787–788, 111 Cal.Rptr.2d 114, 29 P.3d 197, quoting 1 Bouvier's Law Dict. (1872) p. 166.) With respect to its final point, the court further stated: “[A] defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant,...