People v. Navarro CA2/4 ( 2016 )

Filed 1/29/16 P. v. Navarro CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B258937
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA092590)
v.
VICTOR RAMON NAVARRO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Dorothy
L. Shubin, Judge. Affirmed.
Law Offices of Robert C. Moest, Robert C. Moest, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Defendant Victor Navarro appeals from the judgment entered following his
conviction by jury on one count of criminal threats. (Pen. Code, § 422, subd. (a).)1
Defendant’s counsel filed an opening brief that raised no issues and requested
independent review of the record pursuant to People v. Wende (1979) 25 Cal. 3d 436
(Wende). We affirm.
FACTUAL AND PROCEDURAL HISTORY
On April 22, 2014, defendant was charged by information with one count of
criminal threats in violation of section 422, subdivision (a). Defendant pled not guilty to
the charge.
Jury trial commenced on July 14, 2014. The prosecution presented evidence that
on March 8, 2014, defendant engaged in a heated argument with Manuel Barrientos, who
was working as a gardener next door to defendant’s home. Barrientos testified that
defendant told him to stop using a leaf blower, as it was dirtying laundry drying in
defendant’s yard, but Barrientos refused. Defendant then confronted Barrientos as
Barrientos was standing near his truck getting ready to leave. According to Barrientos,
defendant approached him angrily, pulled out a switchblade knife from his pocket,
opened it, and said “I’m in front of my house. Otherwise, I would stab you right now.”
Defendant did not point the knife at Barrientos, but Barrientos testified that he was in fear
for his safety. He told defendant to “do it,” and defendant responded “Not now because
I’m in front of my house. . . . I will see you another day in another street [sic]. I will
have a gun, and I’m going to kill you.” Defendant put his knife back in his pocket and
went back inside his house, then Barrientos called the police.
Officers from the Sierra Madre Police Department arrived and arrested defendant.
They testified that defendant denied brandishing a weapon at Barrientos and denied
having a knife in his home. Defendant consented to a search of his residence; during that
search, police officers recovered a switchblade knife in a bedroom closet. Officers
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Unless otherwise indicated, all further statutory references are to the Penal Code.
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showed photos of the knife recovered from defendant’s bedroom to Barrientos, who
identified it as the same knife defendant was holding during their confrontation.
Defendant testified on his own behalf. He stated that he initially politely asked
Barrientos to change the way he was using the blower, but Barrientos “dismissed me like
I was trash,” at which point defendant “showered Mr. Barrientos with an array of insults
and racial slurs.” Barrientos responded by turning up the blower full blast. Defendant
realized he was getting too “hot,” so he went back inside his home and attempted to calm
himself down. He then approached Barrientos to apologize, but Barrientos responded
rudely, angering defendant. According to defendant, he told Barrientos that “the reason
why I don’t grab you by the shirt right now and bitch slap you like a two-dollar whore is
because I’m right in front of my home and I’m trying to be respectful of my
neighborhood and my neighbor. But be aware, if I ever find you anywhere outside of the
premises of my home . . . , I’m going to put my best effort to put my foot up your ass so
deep and so hard that if you ever have children, they going to be born [sic] with
hemorrhoids.”
Defendant denied having a knife during this encounter and denied ever threatening
to use a knife or a gun against Barrientos. He testified that he did not know there was a
knife in his closet, but believed it belonged to a woman who had visited him about a
week prior to the incident. On cross-examination, defendant was shown photos of the
knife and described how to open it using an index finger.
On July 16, 2014, the jury found defendant guilty as charged. At sentencing, the
court ordered the imposition of sentence suspended, and sentenced defendant to three
years of formal probation, with the condition that defendant serve 320 days in county jail.
Defendant was given credit for 320 days in custody. The court imposed various fines and
probation conditions, including ordering defendant to stay away from the victim and to
attend mental health counseling. Defendant timely appealed.
DISCUSSION
Defendant’s appellate counsel filed a brief that raised no issues and asked this
court to independently review the record pursuant to People v. Wende (1979) 25 Cal. 3d
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436. On July 20, 2015, we sent defendant a letter informing him of the nature of the brief
that had been filed and advising him that he had 30 days to file a supplemental brief
setting forth issues he wished this court to consider. On August 18, 2015, we received
defendant’s supplemental brief, raising the issues addressed below.
A. Defendant’s Contentions
Defendant makes several complaints relating to the performance of his court-
appointed trial counsel, in essence raising a claim of ineffective assistance. First,
defendant contends his counsel tried to “coerce” him into taking a guilty plea. Because
defendant did not accept a plea but proceeded to trial, he has not articulated any prejudice
flowing from the alleged conduct by defense counsel. (See, e.g., People v. Mai (2013) 57
Cal. 4th 986, 1009 [to establish a claim for ineffective assistance of counsel, defendant
“must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been different”].)
Second, defendant claims that, during voir dire, defense counsel dismissed jurors
defendant wanted to keep. There is no evidence supporting this contention in the record,
let alone sufficient evidence to support a claim of ineffective assistance of counsel. (See
Mai, supra, 57 Cal.4th at p. 1009 [“When examining an ineffective assistance claim, a
reviewing court defers to counsel’s reasonable tactical decisions, and there is a
presumption counsel acted within the wide range of reasonable professional
assistance.”].)
Third, defendant claims that his counsel contradicted defendant’s testimony during
closing argument, most notably by stating that defendant did have a knife during his
confrontation with Barrientos. Defendant is incorrect. In his closing argument, defense
counsel noted the testimony by Barrientos that defendant threatened to stab him and
defendant’s own testimony that he would “put [his] boot up [Barrientos’s] ass.” Counsel
acknowledged that under either scenario, defendant’s statements may have sounded like a
threat, but argued that “this is a case about words” and the context of the words used by
defendant failed to meet the elements to establish a criminal threat under section 422,
subdivision (a). Defense counsel did not state that defendant was actually holding a
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knife, but he did argue that even “if it’s true [defendant] had a knife in his hand,”
defendant never pointed it at Barrientos or “took any actions to go and do these threats.”
He also pointed out that Barrientos’s actions in challenging defendant were inconsistent
with Barrientos’s testimony that he was fearful that defendant would stab him. Under
these circumstances, particularly in light of defendant’s own admissions regarding his
interactions with Barrientos, we decline to speculate that counsel’s actions were due to
incompetence rather than reasonable trial strategy. (See Strickland v. Washington (1984)
466 U.S. 668, 686 [to prove ineffective assistance of counsel, defendant must show “his
counsel’s performance was deficient when measured against the standard of a reasonably
competent attorney”]; Mai, supra, 57 Cal.4th at p. 1009 [“On direct appeal, a conviction
will be reversed for ineffective assistance only if (1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or omission, (2) counsel
was asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation.”].)
Finally, defendant claims that his attorney “prevent[ed]” him from making a
statement to the court prior to his sentencing. At sentencing, the court informed
defendant of his right to be heard and defendant initially indicated that he wished to make
a statement. The transcript of the proceedings reflects that defendant then conferred with
his counsel, after which point defendant stated “No, your honor. That’s okay. Thank
you.” We find no evidence on this record to support defendant’s claim that he was
prevented by his counsel from making a statement.
B. Wende Review
In addition to considering the issues above, we have independently reviewed the
entire record. We are satisfied that no arguable issues exist and defendant has received
effective appellate review of the judgment entered against him. (Smith v. Robbins (2000)
528 U.S. 259, 277-279; People v. Kelly (2006) 40 Cal. 4th 106, 123-124.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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