P. v. Navarro
Filed 7/10/12 P. v. Navarro CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY PAUL NAVARRO,
Defendant and Appellant.
D058994
(Super. Ct.
No. FBA900385)
APPEAL from
a judgment of the Superior Court
of
Bernardino County, John B. Gibson, Judge. Affirmed as modified.
A jury
found Anthony Paul Navarro guilty of one count of
§ 205),
title="">[1]
two counts of assault with a firearm
(§ 245, subd. (a)(2)), one count of
subd. (a)(1)), and one count of intimidation
of a witness (§ 136.1, subd. (c)(1)) arising out of a
confrontation he and his father, Michael Ray Navarro, had with Jessica
Dickinson and Sandra Robles.
name="_ftnref2" title="">[2] The jury also found true allegations that
Anthony had two prior felony convictions for purposes of the "Three
Strikes" law. (§§ 667,
subds. (b)-(i), 1170.12.)
The trial
court sentenced Navarro to prison for 100 years to life, imposing a consecutive
prison term of 25 years to life for each conviction (§§ 667,
subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii)), but staying execution
of the term imposed for the conviction of assault with a deadly weapon
(§ 654). The court also ordered
Anthony to pay $70 per conviction for court security and facilities fees. (§ 1465.8, subd. (a)(1); Gov. Code,
§ 70373, subd. (a).)
On appeal,
Anthony contends the trial court erred in denying his
new evidence from Jessica's brother Jesse that Anthony was not present when
Jessica was assaulted. Anthony also
contends the court imposed an excessive amount of court security fees.
We modify
the judgment to reduce the amount of court security fees and also to add to the
sentence for each of Anthony's current convictions the mandatory consecutive
prison term of five years for each of his prior serious felony convictions,
which the superior court failed to impose.
In all other respects, we affirm the judgment.
FACTUAL
BACKGROUND
Jessica and
Robles were sitting outside Robles's apartment complex one evening while their
children played nearby. As Jessica was
talking to a friend, a van drove out of the complex and stopped between them.
Michael
exited the passenger side of the van, yelled at Jessica and Robles, and asked
whether they had a problem. Michael
pointed a gun and told Robles he was going to "light up" the house
and "shoot anybody over there."
He told Jessica he was going to shoot her three-month-old daughter, whom
she was holding at the time.
Anthony
exited the driver's side of the van, approached Jessica and told her he wanted
to fight Jesse. While Jessica and
Anthony were arguing, Jesse arrived.
Anthony then began arguing with Jesse, swung at him and stabbed him in
the chin with a box cutter.
Jessica
tried to break up the fight by stepping between Jesse and Anthony, but Anthony
stabbed her. She fell to the ground and
shouted that she had been stabbed.
Jessica then saw a "flash" and heard a "loud bang"
as Anthony and Michael ran toward the van and then drove away.
Jessica
went to the hospital for treatment of stab wounds to her
officer that during the confrontation outside Robles's apartment, Michael
pulled a black handgun from his waistband, pointed it at her and Robles, and
shouted an obscenity.
Later that
evening, the police officer interviewed Robles about the confrontation at her
apartment complex. Robles also told him
that Michael had a gun.
The
following day, Anthony telephoned Jessica and Robles and warned them not to go
to the police or he would harm their children.
After having received these threats, Jessica and Robles testified at
trial that they did not see a gun during the confrontation with Anthony and
Michael.
DISCUSSION
A. The Trial Court Did Not
Abuse Its Discretion in Denying the Motion for New Trial
Anthony
contends the trial court abused its discretion by denying his motion for new
trial, which was based on new testimony from Jesse that Anthony was not present
during the confrontation. After setting
forth additional background information and the generally applicable rules
governing the determination of Anthony's motion, we shall analyze and
ultimately reject this contention.
1.
After the jury
returned its guilty verdicts but before sentencing, Anthony moved the court to
order a new trial based on testimony from Jesse that Anthony was unable to
produce at the trial. Anthony's attorney
and investigators had made several efforts to locate Jesse before trial; but in
part because Jesse was in and out of prison, they did not find him and obtain
his testimony until after the jury reached its verdicts.
At a
hearing held before the new trial motion was actually filed, Jesse testified on
direct examination by Anthony's counsel that the confrontation in which Jessica
was injured occurred in the following way:
"I was coming from the liquor
store. Bought some beer. Went back to the apartments, and there's a
dark blue van outside. I walked up. There was a lot of Black people outside. Got in an argument with one of the
Blacks. Black stabbed me. Ran inside [and] grabbed a rag, came back
out, seen my sister on the floor. Seen
the Blacks jump in the van and take off."
Jesse also testified he did not see anyone cut Jessica, but
did see a Black man "[r]unning away from her." When Anthony's counsel asked Jesse whether
Anthony was present when Jessica was cut, Jesse responded, "No, sir."
On
cross-examination by the prosecutor, Jesse testified Jessica and Robles would
have been lying had they testified that Anthony cut Jessica. Jesse also testified his cousin would have
been lying had he testified that he drove Jesse back to the apartment complex
and saw Anthony there right before Jessica was cut.
In his
written new trial motion, Anthony described his unsuccessful efforts to present
Jesse as a witness at trial and argued Jesse's "testimony was immensely
critical to the defense . . . and should be presented to a
jury in the form of a new trial."
The People opposed the motion on the grounds that Jesse's testimony was
not credible and was not different from testimony the jury heard from other
witnesses favorable to Anthony.
At the
hearing on the new trial motion, the parties agreed and the court found that
Anthony had been diligent in trying to obtain Jesse's testimony before trial
and that his testimony was material. The
court, however, denied the motion, noting Jesse was "well on his way to
becoming a career criminal" and "ha[d] every reason on earth not to
want to be labeled . . . a snitch," and finding his
testimony "completely unbelievable" and "entitled to no
credibility."
2.
A trial
court "may, upon [a defendant's] application, grant a new trial" when
"new evidence is discovered material to the defendant, and which he could
not, with reasonable diligence, have discovered and produced at the
trial." (§ 1181,
subd. 8.) For a court to grant a
new trial on this ground, the newly discovered evidence must not "simply
corroborate[] the defendant's story" (People
v. Cooper (1979) 95 Cal.App.3d 844, 852 (Cooper)) or "simply contradict[] . . . the
testimony of the people" (People v.
Cesena (1891) 90 Cal. 381, 383; accord, People
v. Hall (2010) 187 Cal.App.4th 282, 299 (Hall)). Nor is a new trial
warranted if the new evidence is "merely cumulative" (
10 (Fong Ah Sing);
817, 827 (Butts)) or "merely
impeaching in character" (People v.
Snyder (1940) 36 Cal.App.2d 528, 535; accord, Hall, at p. 299).
Rather, to justify a new trial the " 'newly discovered
evidence . . . must make a different result probable on
retrial.' " (People
v. Verdugo (2010) 50 Cal.4th 263, 308 (Verdugo).) To determine whether a different result is
likely on retrial, "the trial court may consider the credibility as well
as materiality of the evidence." (
176, 202 (Beyea), disapproved on
other grounds by People v. Blacksher (2011)
52 Cal.4th 769, 808; accord, People v.
Delgado (1993) 5 Cal.4th 312, 329 (Delgado).)
On appeal
from an order denying a motion for new trial, we apply the deferential abuse of
discretion standard. (E.g.,
determinations and findings on questions of historical fact if supported by
substantial evidence.' " (Verdugo,
at p. 308.) In addition, "we
justifiably accord considerable deference to the trial judge 'because of
"his observation of the witnesses, [and] his superior opportunity to get
'the feel of the case.' " ' "
(People v. Hayes (1985) 172
Cal.App.3d 517, 524-525 (Hayes);
accord, People v. Cua (2011) 191
Cal.App.4th 582, 608 (Cua).)
3.
Anthony
argues we should not defer to the trial court's credibility determination
because no substantial evidence supports the trial court's statements that
"Jesse was well on his way to being a career criminal" and
"would not want to be labeled a snitch." He also surveys the
conflicting testimony at trial to argue that "[b]ecause the evidence in
this matter was fairly balanced, [we] must conclude that it is probable that
[Anthony] would have obtained a better result had Jesse testified for the
defense at trial." We disagree.
First,
there was substantial evidence to support the trial court's statements about
Jesse's lack of credibility. As to
Jesse's becoming a "career criminal," Anthony's counsel submitted a
declaration as part of the new trial motion in which he stated that
(1) after the jury had found Anthony guilty, counsel learned Jesse was
incarcerated; (2) at the trial court's suggestion, counsel prepared a
transportation request and order to make Jesse available as a witness;
(3) after Jesse had been released, counsel spoke to Jesse's parole
officer; and (4) Jesse finally became accessible "when he was taken
into custody for new criminal charges."
In addition, Anthony acknowledges in his briefing that there was
testimony at trial that Jesse was involved with Anthony and Michael in a
fraudulent check cashing scheme. As to
Jesse's desire to avoid being labeled a "snitch," the trial court
heard testimony during trial that Anthony threatened harm to their children if
Jessica or Robles went to the police; and that, after Anthony threatened them,
they both changed their story about seeing Michael with a gun. Anthony reasonably concedes in his briefing
that "there undoubtedly is some truth to [the People's] assertion that
being labeled a snitch can be hazardous to the individual's well
being." Further, and perhaps most
importantly, we must give substantial deference to the trial court's
credibility assessment because, although the court did not specifically comment
on Jesse's demeanor, the court was able to observe him on the witness
stand. (Cua, supra, 191
Cal.Ap.4th at p. 608; Hayes,
pp. 524-525.) Thus, because the
record supports the trial court's stated reasons for doubting Jesse's
testimony, the "weight and credibility to be attached to
the . . . testimony . . . was for the
trial judge" (People v. Hill (1969)
70 Cal.2d 678, 699), and we defer to its determination (Verdugo, supra, 50
Cal.4th at p. 308).
Second, it
is not reasonably probable that Anthony would obtain a better result at a new
trial were Jesse to testify. As just
explained, the trial court could properly determine that Jesse's testimony was
not credible; and it was entitled to take that determination into account when
deciding whether Jesse's testimony would render a different result on retrial
probable. (Delgado, supra, 5 Cal.4th
at p. 329; Beyea,
p. 202.) Moreover, Anthony
correctly points out in his briefing that at trial the testimony regarding his
involvement in the confrontation with Jessica and Robles was in conflict, and
several witnesses (mostly family members) testified Anthony was at a relative's
birthday party at the time Jessica was stabbed.
Jesse's testimony that Anthony was not involved in the confrontation
thus would have been "merely cumulative" of the testimony of the
witnesses who testified on Anthony's behalf (Butts, supra, 236
Cal.App.2d at p. 827) and would have "simply corroborated [their]
story" (Cooper,
p. 852). Although Jesse's testimony
clearly would have contradicted that of Jessica and Robles, " '[a] new trial on the
ground of newly discovered evidence is not granted where the only value of the
newly discovered evidence is as impeaching evidence' or to contradict a witness
of the opposing party." (
In sum, we
hold that "[b]ecause the assertedly newly discovered evidence was
cumulative and would not have rendered a different result on retrial probable
for [Anthony], the trial court did not abuse its discretion in denying his new
trial motion." (
254, 333; see also Fong Ah Sing,
is well settled that in cases of conflicting testimony, newly discovered
evidence merely cumulative will not furnish ground for new trial."].)
B. The Trial Court Imposed
an Incorrect Amount for Court Security Fees
Anthony
contends the trial court erred by imposing $40 per conviction in court security
fees under the version of section 1465.8, subdivision (a)(1) in effect at
the time of sentencing. He argues the
court should have charged him only $30 per conviction, the amount specified by
the version of the statute in effect when the jury found him guilty. The People agree with Anthony, and so do we.
As
originally enacted in 2003, section 1465.8, subdivision (a)(1) stated in
relevant part: "To ensure and
maintain adequate funding for court security, a fee of
twenty dollars ($20) shall be imposed on every
offense, except parking offenses . . . ." (Stats. 2003, ch. 159, § 25.) The fee increased to $30
effective July 28, 2009 (Stats. 2009‑2010, 4th Ex. Sess.,
ch. 22, § 29), and to $40 effective October 19, 2010 (Stats.
2010, ch. 720, § 33).
applied when the jury returned guilty verdicts against Anthony; but the $40 fee
applied when the court sentenced him to prison.
The question, therefore, is on which of these dates Anthony was
convicted.
similar question in People v. Davis (2010)
185 Cal.App.4th 998 when construing Government Code section 70373,
subdivision (a)(1), which provides:
"To ensure and maintain adequate funding for court facilities, an
assessment shall be imposed on every conviction for a criminal offense,
including a traffic offense, except parking
offenses . . . ."
The court asked, "what constitutes a 'conviction'—is it the verdict
or guilty plea, or the ensuing sentence and judgment of conviction?" (Davis,
at p. 1001.) The court noted the
ordinary rule that "a person stands 'convicted' upon the return of a
guilty verdict by the jury or by the entry of a plea admitting guilt," and
held "the ordinary rule applie[d]" to construction of the term
"conviction" as used in the statute.
(Ibid.) Given that the language and purpose of the
statute construed in Davis are nearly
identical to those of section 1465.8, we adopt the same construction of
"conviction" for section 1465.8,
subdivision (a)(1).
Accordingly, because the amount of the court security fee in effect on
the date the jury found Anthony guilty was $30 per conviction, we will modify
the judgment to impose that amount.
C. The Trial Court Erred by Not Imposing Mandatory Five‑year
Enhancements Based on Anthony's Prior Convictions
After
briefing was completed, we noticed the trial court had not imposed the
five-year enhancements for Anthony's two prior serious felony convictions
prescribed by section 667, subdivision (a)(1) and requested letter briefs from
the parties on the issue. (See Gov.
Code, § 68081.) Anthony contends
the trial court was not authorized to impose the five-year enhancements because
the accusatory pleadings identified the prior convictions as serious or violent
felonies for purposes of enhancement under section 667, subdivisions (b)
through (i), not subdivision (a)(1).
The People contend that the pleadings provided adequate notice that they
were alleging Anthony had two prior serious felony convictions, and that the
trial court was required to impose the five-year enhancements. We agree with the People.
As
pertinent here, section 667, subdivision (a)(1) provides that "any person
convicted of a serious felony who previously has been convicted of a serious
felony in this state . . . shall
receive, in addition to the sentence
imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges
brought and tried separately."
(Italics added.) Under this
statute, "when the defendant is convicted of a current serious felony . . .
and has been previously convicted of a serious felony, the trial court must
impose a five-year enhancement for each such prior conviction that was brought
and tried separately. The terms of the
present offense and each section 667[, subdivision (a)(1)] enhancement
run consecutively." (
553 (Dotson).) Further, "under the Three Strikes law,
section 667[, subdivision (a)(1)] enhancements are to be applied
individually to each count of a third strike sentence." (People
v. Williams (2004) 34 Cal.4th 397, 405 (Williams);
see also People v. Garcia (2008) 167
Cal.App.4th 1550, 1560 ["in cases where multiple indeterminate terms are
imposed, all section 667, subdivision (a) five-year serious felony
enhancements must be imposed on every count"].) "The trial court has no discretion and
the sentence is mandatory." (
489, 498 (Purata).) The conditions for imposition of the
mandatory five-year enhancements are satisfied here.
In the
current case Anthony was convicted of five serious felonies: aggravated mayhem, assault with a deadly
weapon (two counts), assault with a firearm and intimidation of a witness. (§§ 667, subd. (a)(4), 1192.7,
subd. (c)(2), (31), (37).) In the
current case, the People also alleged Anthony previously had been convicted of
two serious felonies: attempted robbery
and assault with a deadly weapon (§§ 667, subd. (a)(4), 1192.7,
subd. (c)(19), (31), (39)); and the jury found these allegations
true. On this record, the trial court
was required to impose a consecutive 10‑year prison term based on
Anthony's two prior serious felony convictions.
(§ 667, subd. (a)(1); Dotson,
supra, 16 Cal.4th at p. 553;
consecutive 10‑year term based on those prior convictions had to be added
to the sentence imposed on each of Anthony's five current convictions. (§§ 667, subd. (e)(2)(B), 1170.12,
subd. (c)(2)(B); Williams,
Anthony
argues, however, that the trial court was not authorized to impose the section
667, subdivision (a)(1) enhancements because they were never specifically
charged. Although the prior conviction
allegations listed only statutory sections and subdivisions corresponding to
the Three Strikes law, "the imposition of the five-year enhancement for
the prior serious felony conviction [is] part and parcel of the Three Strikes
statutory scheme." (
Cal.App.4th 410, 425.) Moreover,
"it is clear that a valid accusatory pleading need not specify by number
the statute under which the accused is being charged" (
826); it is sufficient that the pleading identify the factual basis for imposition
of an enhanced penalty (People v. Flynn (1995)
31 Cal.App.4th 1387, 1392-1395; People v.
Shoaff (1993) 16 Cal.App.4th 1112, 1118).
Here, the People alleged in separate allegations that Anthony
"suffered the following prior conviction(s) of a serious or violent
felony," and then indentified two prior convictions by court case number,
Penal Code section violated, date of conviction, county and state of
conviction, and court type. The facts
that Anthony had two prior serious felony convictions were thus adequately
charged. (§ 969;
820, 825.) Although it would be better
practice for the People to allege the specific statutes by which they seek to
enhance a defendant's sentence, we conclude the information here provided
sufficient notice of the potential five-year enhancements by stating the facts
supporting them in separate allegations.
In sum, we
conclude that based on Anthony's two prior serious felony convictions the trial
court was required to impose a consecutive 10‑year term on the sentence
for each of his five current convictions.
Its failure to do so resulted in an unauthorized sentence. (People
v. Turner (1998) 67 Cal.App.4th 1258, 1269.) It is our duty to correct an unauthorized
sentence on appeal even where, as here, doing so results in a longer prison
sentence. (People v. Serrato (1973) 9 Cal.3d 753, 764, disapproved on
unrelated grounds by People v. Fosselman (1983)
33 Cal.3d 572, 583, fn. 1; People v.
Solórzano (2007) 153 Cal.App.4th 1026, 1040-1041.) Further, because imposition of the prior
serious felony conviction enhancements is mandatory, we need not remand for
resentencing, as suggested by the People, but instead modify the judgment to
impose the enhancements. (
DISPOSITION
The
judgment is modified (1) to reduce the amount of court security fees
imposed pursuant to section 1465.8, subdivision (a)(1) to $30 for each
current conviction, for a total of $150; and (2) to add to the prison term
imposed for each current conviction a consecutive term of 10 years based on
Anthony's two prior serious felony convictions pursuant to section 667,
subdivisions (a)(1) and (e)(2)(B), with execution of the additional
10-year term to be stayed pursuant to section 654 for the conviction on
count 4 (assault with a deadly weapon), for a total additional consecutive
prison term of 40 years. As so modified,
the judgment is affirmed.
Upon remand, the superior court is directed to prepare an
amended abstract of judgment reflecting the above modifications and to forward
a certified copy of the abstract to the Department
of Corrections and Rehabilitation.
IRION, J.
WE CONCUR:
BENKE,
Acting P. J.
NARES,
J.
name="_ftn1" title="">[1] Subsequent undesignated statutory
references are to the Penal Code.
name="_ftn2" title="">[2] Michael was a codefendant at trial but
filed a separate appeal, which we decided in an unpublished opinion. (People
v. Navarro (Aug. 24, 2011, D058176).)
Because Anthony and Michael have the same surname, we use their first
names for clarity and brevity; in doing so, we intend no disrespect or undue
familiarity. We shall do the same with
respect to Jessica and her brother Jesse Dickinson.
