People v. Navarro

THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO NAVARRO, Defendant and Appellant.

F065680

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

December 18, 2015

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. Nos. VCF187188, VCF217254A)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge.

Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- On retrial in 2012, a jury convicted Appellant Marco Antonio Navarro of first degree murder, dissuading a witness by threat, and auto theft. The trial court sentenced Navarro to 31 years eight months to life in prison. He was also sentenced to a consecutive two-year term in another case in which he pled nolo contendere to assault and admitted a gang allegation.

On appeal, Navarro argues reversal of the judgment is required because the trial court erroneously admitted into evidence hearsay documents, a statement made by Navarro during a counseling session, evidence of a subsequent crime committed by Navarro, the testimony of an unqualified expert, and the former testimony of a witness who was not available. He also contends the trial court made instructional and sentencing errors; that the prosecutor committed misconduct by placing inadmissible evidence before the jury; and that his conviction for the assault was time barred by the statute of limitations. We conclude Navarro is entitled to have a restitution fine and a stayed parole revocation restitution fine reduced, but otherwise affirm.

STATEMENT OF THE CASE¹

In March of 2008, an information in case No. VCF187188 charged Navarro with the June 2007 murder of Tony Jimenez (Pen. Code, § 187, subd. (a)), forcibly dissuading witness K.J. (Pen. Code, § 136.1, subd. (c)(1)), and grand theft of an automobile (Pen. Code, § 487, subd. (d)(1)). The information further alleged Navarro personally used a deadly weapon (a knife) in the commission of both the murder and the witness dissuasion (Pen. Code, § 12022, subd. (b)(1)).

First Trial

In November 2008, a jury convicted Navarro on all counts, found the murder to have been in the first degree, and found the deadly weapon allegations true. The courtsentenced Navarro to an aggregate term of 30 years eight months to life in prison. It imposed a $2,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), and a restitution order payable to Jimenez's family in the amount of $10,547.39 (Pen. Code, § 1202.4, subd. (f)).

In September 2010, on direct appeal, this Court modified Navarro's presentence custody credits and affirmed the judgment in all other respects. However, in later habeas corpus proceedings, this Court issued an order to show cause returnable in the superior court as to whether Navarro received effective assistance of counsel at trial. In December 2011, the superior court found Navarro had not received effective assistance of counsel and issued an order reversing his convictions.

Second Trial

At Navarro's second trial in July 2012, a jury again convicted Navarro on all counts, found the murder to have been of the first degree, and found the deadly weapon allegations true.

The court sentenced Navarro to an aggregate term of 31 years eight months to life in prison, this time adding a second one-year enhancement for personal use of a weapon. It imposed a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $10,000 parole revocation restitution fine (Pen. Code, § 1202.45), and a restitution order payable to Jimenez's family in the amount of $12,547.39 (Pen. Code, § 1202.4, subd. (f)).

Navarro timely appealed.

2009 Jail Assault

Earlier, in February 2009, Navarro was charged with felony assault by means of force likely to produce great bodily injury on a fellow inmate at the Tulare County jail (Pen. Code, § 245, subd. (a)(1)), and a further allegation alleged the act was done for the benefit of, at the direction of, or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)). The alleged offense took place January 16, 2009, eight days after the superior court imposed the original judgment in case No. VCF187188.

In June 2012, before the second trial, Navarro pleaded nolo contendere and admitted the street gang allegation in the 2009 jail assault case. In July 2012, the court sentenced Navarro to four years in prison. Following Navarro's second trial and conviction later that month in case No. VCF187188, the court resentenced him to a consecutive subordinate term of two years in prison.

On April 17, 2013, this court issued an order granting Navarro's request to construe his notice of appeal from the judgment in case No. VCF187188 (the 2008 case) as also being from the judgment in case No. VCF217254A (the 2009 case). However, this court denied without prejudice Navarro's additional request for leave to file an otherwise untimely request for a certificate of probable cause.

STATEMENT OF FACTS

In 2007, Navarro, two months shy of his 17^th birthday, lived in a Visalia group home for troubled adolescents. He had a bedroom to himself. Fellow residents K.J. and E.D. shared a bedroom down the hall from Navarro, while S.B. and another resident shared a third bedroom. The residents participated in group counseling. At one counseling session, Navarro said his favorite holiday was Halloween because he could wear a mask and stab people.

Tony Jimenez began working at the group home around June 2007. He was pursuing a master's degree and had previously worked in another group home, in juvenile hall, and in a hospital with special education students. Jimenez was five feet eight inches tall and weighed about 220 pounds; Navarro was about five inches shorter than Jimenez.

Landon Meeks, who worked at the group home, trained Jimenez on the practices and procedures of the group home. For instance, staff members were to report the status and conduct of the residents in a logbook; they were to write an incident report using a standardized form if a resident broke a house rule; and they were not allowed to use physical force on residents. The residents were not allowed to have weapons, and staff members were to store all knives and other sharp objects in the office safe. Staffmembers had access to a group home van, but were to keep the keys in their immediate possession.

On June 24, 2007, Jimenez worked the overnight shift by himself for the first time. His duties included enforcing bedtime and periodically checking to see that the residents remained in their bedrooms. Staff member James Hunt worked the preceding shift and was preparing to leave when Jimenez arrived. Before Hunt left, he heard a "disagreement" between Jimenez and Navarro about bedtime. Specifically, Hunt heard Jimenez tell Navarro "[t]o go back to his room." Navarro was uncooperative and said something like "I don't want to go back." When Hunt asked Jimenez if everything was okay, Jimenez said yes, but that Navarro was "just a little out of line right now." Hunt stayed at the house until "everything was fine" and then left.

K.J. was watching a movie in S.B.'s bedroom when Jimenez told everyone they needed to get to bed once the movie was over. K.J. later heard an argument between Navarro and Jimenez in the kitchen. Soon after, K.J. saw Navarro sitting on his own bed.

After watching television by himself in the living room, E.D. heard an argument between Navarro and Jimenez in the kitchen about Navarro wanting to watch more television rather than go to bed. E.D. heard Navarro cuss at Jimenez a couple of times and say something like, "you're not the boss of me."

About 15 to 20 minutes after Hunt left, he returned to retrieve something he left behind and saw Jimenez sitting by himself at a table. The house was quiet and it seemed that all of the residents were in their bedrooms.

At 10:32 p.m., Jimenez called Luis Jauregui, a child care worker who was slated to be promoted to manager of the group home the following day, and asked him what the procedure was for addressing Navarro's refusal to go to bed. Jauregui told Jimenez to leave Navarro alone and write an incident report.

Later that night, K.J. woke to the sound of a fight between Navarro and Jimenez in the bedroom K.J. shared with E.D. The two appeared to be wrestling and punching eachother. Navarro appeared to be holding a knife. Jimenez eventually ran out of the bedroom, down the hall and out the front door. Navarro followed him outside. Jimenez yelled for help, but soon fell silent.

Navarro came back into the house, pointed a knife at K.J. and told him the same thing that happened to Jimenez would happen to him if he said anything. Navarro then drove away in the group home van. K.J. walked outside and saw Jimenez's body lying in a flower bed near the front of the house. A subsequent autopsy revealed Jimenez had been stabbed 92 times, including a fatal stab which severed an artery on the right side of his neck.

Police arrived at the scene at approximately 1:00 a.m. on June 25 and discovered the ground around Jimenez's body "saturated with blood." There was an arc of blood on the exterior wall of the house above the body. Police Detective Curtis Brown opined that the arc of blood had been cast off "a hand or something that's being held in a person's hand" while "making a forward and back motion."

Inside the house, police found an abundance of blood in the hallway and in K.J. and E.D.'s bedroom. Detective Brown opined the deposits of blood in the bedroom confirmed that it had been...