People v. Navarro CA4/2

Filed 2/26/14 P. v. Navarro CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058744
v. (Super.Ct.No. SWF023049)
MARIO NAVARRO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge.
Affirmed.
Christian Buckley, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
After defendant and appellant Mario Navarro’s acquittal on various charges
stemming from an alleged sexual assault, defendant petitioned to have his arrest record
sealed and destroyed and for a finding of factual innocence under Penal Code sections
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851.8, subdivision (e), and 851.85.1 The trial court denied the petition, and defendant
appealed. We will affirm the order.
I
FACTUAL AND PROCEDURAL BACKGROUND
Jane Doe and defendant went on several dates in 2007 when Jane was 35 years
old. Jane had lived at home her entire life. She claimed that she was a virgin who was
planning on waiting until marriage to have sexual intercourse.
On September 29, 2007, Jane went to defendant’s apartment around 9:00 p.m.
After defendant and Jane kissed for 10 to 20 minutes, defendant carried Jane into his
bedroom. Defendant laid on the bed with Jane and continued kissing Jane. Defendant
then laid on top of Jane and spread her legs with his legs and rubbed up against her. Jane
tried to push her legs together but defendant prevented her from doing so. Defendant
then undressed Jane, lowered his shorts, and continued to rub his penis on her vagina
over her underwear. Defendant sucked on Jane’s breasts for 10 to 20 minutes and
digitally penetrated her vagina. Jane repeatedly told defendant to stop. Defendant then
took off Jane’s underwear and continued to penetrate her vagina with his finger and
penis.
After about an hour, defendant stopped and the two talked while lying on the bed.
Jane said that she did not want to lose her virginity to defendant; defendant replied that he
respected that. The two again began to kiss. Later, defendant knelt on the floor, spread
1 All future statutory references are to the Penal Code unless otherwise stated.
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Jane’s legs and performed oral sex on her for 20 to 30 minutes. He then got a condom,
put it on, and had sex with Jane. Jane told defendant to stop and that it was hurting her.
After defendant stopped, Jane grabbed her clothes, and left at around 2:00 a.m.
The following morning Jane called the police and went in for a sexual assault
examination. Jane noticed that she had bruising on her legs. The examination revealed
that Jane had sucking marks on each of her breasts; abrasions, tenderness and redness on
her vagina; and a tear on her anus. The findings were consistent with Jane having sexual
contact as Jane described including penetration to the vagina and anus. Jane also had
bruising on her thighs.
Defendant stated that his penis had vigorously rubbed Jane’s vaginal area while
they were clothed. He admitted to fondling and kissing Jane’s breasts and touching her
vaginal area with his mouth and fingers. Defendant also admitted to retrieving a condom
but denied having sexual intercourse with Jane, sexually penetrating Jane, and having
contact with Jane’s vagina except over her underwear. Defendant stated that he may
have slightly penetrated Jane with his finger, penis, and tongue over her underwear.
Defendant asserted that he never had sexual intercourse with Jane and never did anything
against her will or after she told him to stop.
On April 2, 2008, an amended information was filed charging defendant with
unlawful sexual intercourse by force or fear (§ 261, subd. (a)(2)); unlawful sexual
penetration by force or fear (§ 289, subd. (a)(1)); and unlawful oral copulation by force or
fear (§ 288a, subd. (c)(2)).
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On September 17, 2008, a jury found defendant not guilty of all the charges,
including the lesser included offenses.
On March 19, 2010, defendant filed a petition for a finding of factual innocence
under sections 851.8, subdivision (e), and 851.85. An evidentiary hearing was held on
April 30, 2010, before Judge Mark Mandio. In May 2010 Judge Mandio denied the
petition without prejudice to defendant bringing the motion before Judge Albert J.
Wojcik who had presided over the trial.
On July 6, 2012, defendant re-filed his petition for a finding of factual innocence
with Judge Wojcik.
On September 7, 2012, Judge Wojcik denied defendant’s petition for a finding of
factual innocence. Judge Wojcik explained: “In reviewing the moving papers, reviewing
[his] notes, reviewing the transcript provided, it appears to the Court that that evidence
was reasonable relative to reasonable cause in believing that [defendant] did commit the
crimes. Whether or not it was proof beyond a reasonable doubt, obviously no. In
evaluating the record and the evidence, it might raise a substantial question as to guilt,
but it fails to completely exonerate the defendant.”
On May 1, 2013, we granted defendant’s petition for writ of habeas corpus to
establish the constructive timely filing of a notice of appeal. On May 8, 2013, defendant
filed a notice of appeal challenging the denial of his petition for a factual finding of
innocence.
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II
DISCUSSION
We appointed counsel to represent defendant on appeal. After examination of the
record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a
summary of the facts and potential arguable issues, and requesting this court conduct an
independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
KING
J.
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