People v. Navarro CA5

Filed 11/2/22 P. v. Navarro CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083216
Plaintiff and Respondent,
(Super. Ct. No. 21CMS0124)
v.
RUDY NAVARRO, MODIFICATION OF OPINION
AND DENIAL OF REHEARING
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion herein filed on October 14, 2022, be modified as
follows:
1. On page 8, in the last line after “(See Allen, supra, 33 Cal.App.4th at p. 1156 &
fn. 6.)” the following text is added:
Furthermore, C.S. testified she continued to experience fear after the
incident.
Defendant argues that the language the prosecutor used to elicit this
testimony was insufficient to support a finding of sustained fear.
Specifically, defendant takes issue with the use of the word “any” in the
following testimony:
“[PROSECUTOR:] And were you in fear of your safety at that
time?
“[WITNESS:] Yes.
“[PROSECUTOR:] And did that fear stay with you for any amount
of time after the incident?
“[WITNESS:] Yes.”
Defendant claims that “any” encompasses a momentary, fleeting, or
transitory period of time. Although C.S. did not testify her fear was
sustained for any particular length of time, the absence of testimony as to
the precise duration of her fear did not demonstrate she did not experience
sustained fear. On the contrary, the testimony challenged by defendant
confirmed that she continued to experience fear even after the incident had
ended. Considering all the evidence mentioned above, including this
testimony, a reasonable trier of fact could have concluded C.S. experienced
sustained fear. (See People v. Ortiz (2002) 101 Cal.App.4th 410, 417
[whether victim was in sustained fear can be inferred from the evidence];
People v. Cravens, supra, 53 Cal.4th at p. 507 [In reviewing the sufficiency
of the evidence, “ ‘we review the whole record in the light most favorable
to the judgment to determine whether it discloses substantial evidence—
that is, evidence that is reasonable, credible, and of solid value—from
which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ”].)
This modification does not effect a change in the judgment.
The petition for rehearing is denied.
FRANSON, A.P.J.
WE CONCUR:
PEÑA, J.
MEEHAN, J.
2.
Filed 10/14/22 P. v. Navarro CA5 (unmodified opinion)
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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083216
Plaintiff and Respondent,
(Super. Ct. No. 21CMS0124)
v.
RUDY NAVARRO, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Michael J.
Reinhart, Judge.
Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Darren
K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Peña, J. and Meehan, J.
Defendant Rudy Navarro was convicted by jury trial of second degree robbery and
criminal threats. On appeal, he contends there was insufficient evidence to support his
criminal threats conviction because the victim did not suffer “sustained fear,” an element
of the crime. We affirm.
PROCEDURAL SUMMARY
On May 24, 2021, the Kings County District Attorney filed a first amended
information charging defendant with second degree robbery (Pen. Code, § 211; count 1)1
and criminal threats (§ 422, subd. (a); count 2). The amended information specially
alleged personal use of a firearm (§ 12022.53, subd. (b)) as to both counts. It was further
alleged defendant had suffered five prior strike convictions within the meaning of the
“Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and five prior
serious felony convictions (§ 667, subd. (a)(1)).
On May 27, 2021, the jury found defendant guilty of both counts, but found the
firearm special allegations not true. It found true the prior strike convictions and prior
serious felony convictions.2
On August 5, 2021, the trial court sentenced defendant to 15 years in state prison.
On count 1, defendant was sentenced to five years doubled to 10 years pursuant to the
Three Strikes law, plus five years for the prior serious felony conviction. On count 2, he
was sentenced to three years, doubled to six years pursuant to the Three Strikes law,
which was stayed pursuant to section 654.
On August 19, 2021, defendant filed a notice of appeal.
1 All further statutory references are to the Penal Code.
2 One prior strike conviction was dismissed prior to submission to the jury.
2.
FACTUAL SUMMARY
On January 8, 2021, C.S. was working at a discount store when defendant3 caught
her attention due to the way he was acting. She noticed he had been looking at her, so
she approached him and asked him if he needed help as she put products away. He
refused help and continued to shop, putting things in his shopping cart. At one point, she
walked out of the back room and caught him shoving items into new reusable bags. She
again asked him if he needed help. He responded that he was putting his items in the bag
because they were falling through the shopping cart holes. He had two bags full of
merchandise. She asked him to purchase the bags before using them and then stood by
the front door to divert him from taking the merchandise without paying. Defendant was
wearing a mask due to COVID-19 requirements and had been in the store for
approximately 20 minutes.
Defendant eventually began walking out with the unpaid merchandise. C.S. was
still standing by the front door entrance. When she asked him to pay, he lifted up his
shirt and she saw what she believed to be the handle of a gun. He told her to move, or he
would “f[***]ing shoot” her while approximately three feet away. She described the gun
as “pleated black” with silver on it. She was familiar with guns as she had held and shot
one before. She was shocked, scared, and angry. She felt he would follow through with
his threat and feared for her safety. She said the fear stayed with her after the incident
and it still had an effect on her on the day of trial. She said, “I am a little bit more—kind
of like don’t like to ask customers if they need help, I think more about what I do now.”
After making the statement, defendant left with the unpaid merchandise. She watched
him walk out and took pictures as he got into his vehicle and called 911.
3 C.S. identified defendant in court as the person in the store on the date of the
incident.
3.
An 11-second video showing defendant as he walked out of the store was admitted
into evidence and played for the jury. The video depicted the moment he raised his shirt,
exposing the handle of an alleged gun as he made the statement to C.S. Defendant’s back
faced the camera, but C.S. could see the front of his body.
After the incident, C.S. spoke with law enforcement. They showed her a photo
lineup a few hours later, but she was unable to make an identification. At the preliminary
hearing, C.S. identified defendant by the shape of his eyes and tattoos.
DISCUSSION
Defendant contends his conviction for criminal threats (§ 422, subd. (a)) must be
reversed because there is insufficient evidence to establish that C.S. suffered sustained
fear. We disagree.
A. Applicable Law
1. Sufficiency of the Evidence
In reviewing the sufficiency of the evidence, “ ‘we review the whole record in the
light most favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ”
(People v. Cravens (2012) 53 Cal.4th 500, 507.) “We must presume in support of the
judgment the existence of every fact that the trier of fact could reasonably deduce from
the evidence.” (People v. Medina (2009) 46 Cal.4th 913, 919.) “The conviction shall
stand ‘unless it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].” ’ ” (Cravens, at p. 508.) The reviewing court
“neither reweigh[s] the evidence nor reevaluate[s] the credibility of the witnesses.”
(People v. Mohamed (2011) 201 Cal.App.4th 515, 521.)
2. Criminal Threats
Section 422, subdivision (a) provides that, “[a]ny person who willfully threatens to
commit a crime which will result in death or great bodily injury to another person, with
4.
the specific intent that the statement, made verbally, in writing, or by means of an
electronic communication device, is to be taken as a threat, even if there is no intent of
actually carrying it out, which, on its face and under the circumstances in which it is
made, is so unequivocal, unconditional, immediate, and specific as to convey to the
person threatened, a gravity of purpose and an immediate prospect of execution of the
threat, and thereby causes that person reasonably to be in sustained fear for his or her
own safety or for his or her immediate family’s safety, shall be punished .…”
Our Supreme Court has explained section 422’s requirements in terms of
five elements: “The prosecution must prove ‘(1) that the defendant “willfully
threaten[ed] to commit a crime which will result in death or great bodily injury to another
person,” (2) that the defendant made the threat “with the specific intent that the statement
… is to be taken as a threat, even if there is no intent of actually carrying it out,” (3) that
the threat … was “on its face and under the circumstances in which it [was] made, … so
unequivocal, unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of execution of the threat,”
(4) that the threat actually caused the person threatened “to be in sustained fear for his or
her own safety or for his or her immediate family’s safety,” and (5) that the threatened
person’s fear was “reasonabl[e]” under the circumstances.’ ” (In re George T. (2004) 33
Cal.4th 620, 630.)
a. Sustained Fear
Regarding the fourth element, section 422 “requires that the threat be such as to
cause a reasonable person to be in sustained fear for his personal safety. The statute is
specific as to what actions and reactions fall within its definition of a [criminal] threat.
The phrase to ‘cause[ ] that person reasonably to be in sustained fear for his or her own
safety’ has a subjective and an objective component. A victim must actually be in
sustained fear, and the sustained fear must also be reasonable under the circumstances.”
In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140 (Ricky T.).) “Sustained fear” is
5.
defined by “a period of time that extends beyond what is momentary, fleeting, or
transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).)
A line of cases illustrate a range of statements that have been found to support a
finding that the victim suffered sustained fear. In Allen, the defendant had previously
assaulted and stalked the victim’s daughter, and broke into the daughter’s apartment.
(Allen, supra, 33 Cal.App.4th at pp. 1151–1153.) On the day of the incident, the victim
saw the defendant pass by her house several times and then saw him talking to someone
near her back door. (Id. at p. 1154.) When the victim approached the door, the defendant
started cussing at her and told her, “ ‘I’m gonna kill you. I’m gonna kill you and your
daughter.’ ” While making the statement, he took out a gun and pointed it at the victim.
(Ibid.) The victim called 911, but the defendant left before police arrived. (Ibid.) The
victim saw that police took the defendant into custody about 15 minutes later. (Ibid.) He
was charged and convicted with making a criminal threat against her. (Id. at p. 1151.)
On appeal, the defendant argued the victim did not suffer sustained fear because
he was arrested within 15 minutes. (Allen, supra, 33 Cal.App.4th at p. 1155.) The court
in Allen held that the victim’s knowledge of the defendant’s prior conduct was relevant to
establish a state of sustained fear, and that “[f]ifteen minutes of fear of a defendant who is
armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is
more than sufficient to constitute ‘sustained’ fear for purposes of this element of
section 422.” (Id. at p. 1156.)
In Ricky T., a high school student left his classroom to use the restroom. (Ricky T.,
supra, 87 Cal.App.4th at p. 1135.) When he returned, he found the door locked and
pounded on it. (Ibid.) The teacher opened the door and accidentally hit him. The student
became angry, cursed the teacher, and threatened him, saying “ ‘I’m going to get you.’ ”
(Ibid.) He also admitted telling the teacher he was “ ‘going to kick [his] ass.’ ” (Id. at
p. 1136.) However, he did not make any physical movements or gestures. (Ibid.) The
teacher felt threatened, even though he acknowledged the student did not make any
6.
specific threats. (Id. at p. 1135.) As a result, he sent him to the front office and the
student complied. (Ibid.) The police were called the next day and the student was later
found to have violated section 422. (Ibid.) On appeal, the court held the evidence was
insufficient to support the conviction because the teacher’s fear was fleeting and the
statement “was an emotional response to an accident rather than a death threat that
induced sustained fear.” (Id. at p. 1141.) While the teacher stated he felt threatened, the
court found his fear “did not exist beyond the moments of the encounter” because the
statements were not accompanied by a show of force or violence, the student followed
the teacher’s directive to go to the front office, and the police were not notified until the
next day. (Id. at p. 1140.)
In People v. Fierro (2010) 180 Cal.App.4th 1342, 1344–1345 (Fierro), the victim
and his son were at a gas station where he asked the defendant to move his car several
times because he was blocking the pumps. After exchanging words, the defendant
drove away but circled back around to confront the victim. (Id. at p. 1345.) He walked
up to the victim who was already in his car and lifted up his shirt, revealing a weapon in
his waistband and began cussing at the victim and his son. (Id. at pp. 1345–1346.) The
defendant told him, “ ‘I ought to kill you and’ … ‘the stupid mother f[***]er too.’ ” (Id.
at p. 1346.) He said he ought to kill them “ ‘right now.’ ” (Ibid.) The defendant exposed
the weapon for approximately a minute. (Id. at p. 1348.) He then told the victim to
leave. (Id. at p. 1346.) The victim drove away and within 15 minutes reached a safe
place, called 911, and told the operator he was scared “ ‘scared shitless.’ ” (Ibid.)
The court in Fierro held the defendant’s threat caused sustained fear, concluding
“that the minute during which [the victim] heard the threat and saw [the defendant’s]
weapon qualifies as ‘sustained’ under the statute. When one believes he is about to die, a
minute is longer than ‘momentary, fleeting, or transitory.’ ” (Fierro, supra, 180
Cal.App.4th at p. 1349.) The court stated the facts differed “sharply” from those in Ricky
T., explaining that the defendant in Ricky T. “made no physical movements or gestures.
7.
The teacher responded by sending the student to the school office; the teacher did not call
the police until the next day; and there had been no prior history between defendant and
the victim.” (Ibid.)
B. Analysis
Defendant argues this case is similar to Ricky T. because there is no evidence
C.S.’s fear lasted beyond the moment of the encounter. The facts of this case differ
substantially from those of Ricky T.
In the present case, C.S. confronted defendant and asked him to pay for the
merchandise as he walked out of the store. He responded by lifting his shirt and exposing
what appeared to be a handgun and threatened to “f[***]ing shoot her” while he was
approximately three feet away from her. (See Fierro, supra, 180 Cal.App.4th at pp.
1345–1346 [there was substantial evidence the victim felt sustained fear when he heard
someone say, “ ‘I ought to kill you’ … ‘right now,’ ” coupled with seeing a weapon].)
When he left, C.S. immediately called the police. (See Ricky T., supra, 87 Cal.App.4th at
p. 1140 [evidence that “police were not notified until the day after the incident” shows
the victim was not in sustained fear]; see also People v. Melhado (1998) 60 Cal.App.4th
1529, 1538 [calls to the police are evidence the victim is in fear of his or her safety].)
She testified she felt shocked, scared, and angry. She feared for her safety and felt he
would follow through with his threat. Defendant’s threat that he was going to “f[***]ing
shoot” C.S. while brandishing an alleged weapon is not similar to the angry utterances of
an adolescent like in Ricky T., where the student did not make any specific threat and
“there was no evidence offered that [the student’s] words were accompanied by any show
of physical violence—nothing indicating any pushing or shoving or other close-up
physical confrontation.” (Ricky T., at p. 1138.) To the extent the confrontation lasted
only 11 seconds, there is no minimum amount of time an incident must last before the
victim may experience sustained fear. (See Allen, supra, 33 Cal.App.4th at p. 1156 & fn.
6.)
8.
Accordingly, we conclude there is sufficient evidence that C.S. suffered sustained
fear.
DISPOSITION
The judgment is affirmed.
9.