Filed 10/8/20 P. v. Navarro CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B296251
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA457180
v.
ANTONIO NAVARRO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
John Lanahan, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury convicted appellant and defendant Antonio Navarro
of one count of first degree murder of Uziel Sandoval, two counts
of possession of a firearm by a convicted felon, and one count of
shooting at an occupied motor vehicle. On appeal, Navarro argues
the trial court erred by admitting into evidence the audio
recordings of a witness’s two interviews with police conducted in
Spanish, as well as the transcripts of the recordings. The
transcripts contained Spanish transcriptions of the interviews
and English translations. Navarro contends: (1) the admission of
the transcripts’ English translations violated his rights under the
Confrontation Clause pursuant to Crawford v. Washington (2004)
541 U.S. 36 [125 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford) and its
progeny1; and (2) the court abused its discretion under Evidence
Code section 352 when it allowed the prosecution to play the
recordings for the jury and provided them with the transcripts.
The Attorney General responds Navarro has forfeited his claims
on appeal because he did not object on these grounds at trial.
We agree with the Attorney General and conclude Navarro
forfeited the claims of error raised in this appeal. Accordingly, the
judgment is affirmed.
1 Under Crawford, “[w]here a hearsay statement is
‘testimonial,’ the confrontation clause bars the prosecution from
using it against a criminal defendant unless the declarant is
available to testify at trial, or the defendant had a previous
opportunity to cross-examine the declarant.” (People v. Sisavath
(2004) 118 Cal.App.4th 1396, 1401 [citing Crawford, supra, 541
U.S. at pp. 49-57].) In this case, Navarro contends the translator
is the “declarant” and the translator was not present at trial for
cross-examination.
2
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an
information charging Navarro with one count of first degree
murder (Pen. Code, § 187, subd. (a)2; count one), two counts of
possession of a firearm by a convicted felon (§ 29800, subd. (a)(1);
counts two and four), and one count of shooting at an occupied
motor vehicle (§ 246; count three). The information alleged a
principal personally discharged a firearm causing death in the
commission of counts one and three, (§ 12022.53, subds. (d) &
(e)(1)), discharged a firearm (§ 12022.53, subds. (c) & (e)(1)), and
used a firearm (§ 12022.53, subds. (b) & (e)(1)). The information
further alleged Navarro committed the crimes for the benefit of a
criminal street gang with intent to promote gang members’
criminal conduct (§ 186.22, subds. (b)(1)(A) & (C)), and Navarro
sustained two prior prison term convictions. (§ 667.5, subd. (b)).
Navarro admitted the allegations regarding his prior felony
and prison term convictions, and the jury found Navarro guilty
on all counts. The jury found true the street gang allegations on
counts one, two, and three. On count one, the jury found true all
three firearm allegations. On count three, however, the jury
found true only the allegations that a principal discharged and
used a firearm in the commission of the offense.
The court sentenced Navarro to a total term of seven years
and eight months plus 50 years to life in state prison, consisting
of: (1) a term of 25 years to life with an additional consecutive
term of 25 years to life due to a principal’s discharge of a firearm
causing death, for a total of 50 years to life, on count one; (2) a
2 All undesignated statutory references are to the Penal
Code.
3
two-year middle term with a three-year street gang
enhancement, for a total of five years, on count two; (3) a term of
eight months (one-third the mid-term of two years) on count four;
and (4) two one-year terms based on Navarro’s prior convictions.3
Navarro timely appealed.
FACTUAL BACKGROUND
In the late afternoon of November 23, 2016, Sandoval was
driving from Monterey Park to South Gate in his truck with a
friend. They passed through the intersection of Whittier
Boulevard and Alma Street in East Los Angeles where the
Bartolo bar is located. The area around the intersection is
claimed by a street gang known as the Laguna Park Vikings.
Video surveillance footage was recovered from the Bartolo bar.
The footage shows Navarro inside the bar on that date with a
large and heavy black object in his front right pocket.
As Sandoval and his friend were passing by the Bartolo
bar, they stopped the truck, exited the vehicle, and got into a
fight with several individuals outside the bar. Sandoval ran back
to his truck, got into the driver’s seat, and started driving away.
As the truck was turning the corner, a bartender working at the
bar saw Navarro take a gun out from his waist, yell “‘Laguna
Park’” and fire two shots at the truck. Thirty seconds later, the
bartender heard two more gunshots fired by an unknown person.
3 With respect to count one, the court also imposed and
stayed two additional firearm enhancements and a street gang
enhancement. Additionally, the court imposed and stayed a life
term with a minimum of 15 years along with two firearm
enhancements on count three.
4
The truck crashed into a tree on Alma Street, just north of
Whittier Boulevard.
Upon arrival at the crash site, police found Sandoval dead
in the driver’s seat of the truck. He was killed by a single gunshot
wound to the chest. The bullet that killed him was fired by a
nine-millimeter gun. Police found a .45 caliber bullet casing next
to the driver-side door of a white van parked nearby and
recovered a bullet from the truck’s dashboard.
Later that evening, the police interviewed the bartender at
the police station. The interview was conducted in Spanish and
recorded. The bartender related what she observed during the
fight outside the bar. She identified Navarro as a member of the
Laguna Park Vikings known as “Psycho.” She also picked
Navarro out of a photographic line-up as the individual who fired
two gunshots at Sandoval’s truck.
The police again interviewed the bartender at her home in
Spanish on January 25, 2017. During the second interview, which
also was recorded, the bartender told police Navarro had visited
her home and asked her about what she had previously told
them. The police informed the bartender that Navarro was going
to be prosecuted for Sandoval’s murder. They offered to help her
and her family move to a different home for their safety.
Police searched Navarro’s residence on February 28, 2017.
They found a loaded .45 caliber semi-automatic pistol with a
black handle in his bedroom. Ballistics tests revealed the pistol
fired the casing found next to the white van parked near the
crash site. Due to the damage to the bullet recovered from the
truck’s dashboard, ballistics tests could only confirm it “was
consistent with bullets loaded in .45 auto caliber cartridges.”
5
DISCUSSION
At trial, the bartender professed not to recall details of the
incident or what she had said about it during her interviews with
police. She also stated she felt “pressured” to answer police
questions. The prosecution confronted the witness using the
recordings, the Spanish language transcriptions, and the English
translations of her police interviews. Navarro contends this
constituted error. In support of his position, Navarro advances
two arguments. First, he argues the admission of the transcripts’
English translations violated his rights under the Confrontation
Clause pursuant to Crawford, supra, 541 U.S. 36, and its
progeny, because the translations constituted testimonial
hearsay statements by the translator, who Navarro complains he
did not have the opportunity to cross-examine. Second, Navarro
argues the court abused its discretion under Evidence Code
section 352 by admitting the interview recordings, transcripts,
and translations.
The Attorney General responds Navarro forfeited these
claims on appeal by failing to raise them at trial as evidentiary
objections or in any other fashion. We agree with the Attorney
General.
In general, “‘“questions relating to the admissibility of
evidence will not be reviewed on appeal in the absence of a
specific and timely objection in the trial court on the ground
sought to be urged on appeal.’” [Citations].” (People v. Alvarez
(1996) 14 Cal.4th 155, 186 (Alvarez); Evid. Code, § 353, subd. (a).)
“‘The reason for the [objection] requirement is manifest: a
specifically grounded objection to a defined body of evidence
serves to prevent error. It allows the trial judge to consider
excluding the evidence or limiting its admission to avoid possible
6
prejudice. It also allows the proponent of the evidence to lay
additional foundation, modify the offer of proof, or take other
steps designed to minimize the prospect of reversal.’ [Citation.]”
(People v. Partida (2005) 37 Cal.4th 428, 434.)
At trial, the bartender testified she did not remember
telling the police she saw Navarro fire two shots at Sandoval’s
truck while yelling “‘Laguna Park . . . .’” In response, the
prosecution informed the trial court they intended to “confront”
the bartender with the recording of her first interview, along with
the transcript thereof. Relying on an unidentified “de-published
case,” the trial court stated it would not admit the interview
recording or transcript because “[t]he case held that it was
structural error for a court to allow the jurors to translate
themselves the Spanish language audio of the witness’s
interview.” Instead, the court stated it would permit the
prosecution to play the recording for the bartender outside the
jury’s presence. If the bartender maintained she did not make
certain statements to the police, the prosecution could call “a
witness who was present to testify as to the contents strictly in
English.” Alternatively, the court would allow the prosecution to
call the translator to provide a certified translation of the
bartender’s interview.
Before the prosecution could confront the bartender with
the recording, however, she testified she felt “pressured” to
answer the police’s questions during the interviews. Based on
this testimony, the trial court reversed its ruling in light of People
v. Mora and Rangel (2018) 5 Cal.5th 442 (Mora and Rangel). In
response, defense counsel argued Mora and Rangel was
inapplicable. The trial court rejected defense counsel’s argument.
Thereafter, the court allowed the prosecution to play the
7
recordings of the bartender’s two police interviews for the jury.
The trial court also allowed the prosecution to distribute the
transcripts containing both the Spanish transcription and the
English translation to the jury.
The record thus reflects defense counsel did not object to
the prosecution’s use of the recordings and transcripts of the
bartender’s police interviews based on the Confrontation Clause
or Evidence Code section 352. Accordingly, we conclude the
claims Navarro raises on appeal have been forfeited. (Alvarez,
supra, 14 Cal.4th at p. 186; Evid. Code, § 353, subd. (a).)
In addition, we reject Navarro’s argument that he did not
forfeit his Confrontation Clause claim because an objection to the
translated transcripts on that ground would have been futile
under Correa v. Superior Court (2002) 27 Cal.4th 444 (Correa).4
As discussed below, Correa would not necessarily have required
the trial court to overrule a Confrontation Clause objection to the
English translations of the bartender’s statements, as Navarro
suggests.
In Correa, our Supreme Court adopted the “language-
conduit theory,” holding that “if a contemporaneously translated
statement fairly may be attributed to the declarant under the
particular circumstances of the case . . . the translation does not
add a layer of hearsay.” (Correa, supra, 27 Cal.4th at pp. 457,
463.) Relying on the Ninth Circuit’s decision in United States v.
Nazemian (9th Cir. 1991) 948 F.2d 522 (Nazemian), the Correa
court held trial courts must decide whether a translated
statement may be fairly considered a statement by the original
4 In his Reply Brief, Navarro does not dispute his Evidence
Code section 352 claim has been forfeited.
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declarant on a case-by-case basis, by considering a number of
factors, “‘such as which party supplied the interpreter, whether
the interpreter had any motive to mislead or distort, the
interpreter’s qualifications and language skill, and whether
actions taken subsequent to the conversation were consistent
with the statements as translated.’ [Citation.]” (Id. at pp. 457-
458.)
Courts applying the same analysis embraced in Correa
have arrived at different conclusions based on the specific facts
presented in each case. (See, e.g., United States v. Orm Hieng
(9th Cir. 2012) 679 F.3d 1131, 1138-1139 (Hieng) [applying multi-
factor language-conduit theory test to conclude translated
statements by the defendant in an interview with FBI agents
were properly attributed to him, and therefore the Confrontation
Clause was not implicated]; United States v. Gutierrez-Salinas
(9th Cir. 2016) 640 Fed.Appx. 690, 692-693, cert. den. (2016) 136
S. Ct. 2528 [195 L.Ed.2d 855] [applying multi-factor language-
conduit theory test to conclude a form affidavit written in English
and signed by a Spanish-speaking defendant could not be fairly
attributed to the defendant and was therefore a separate hearsay
statement by the form’s author, and further concluding admission
of the form violated the Confrontation Clause because it was
testimonial in nature and the defendant had no opportunity to
cross-examine its author].) Accordingly, we are not persuaded
that a Confrontation Clause objection to the translated
transcripts necessarily would have been futile under Correa.
Navarro also argues the translations of the bartender’s
statements should be considered hearsay statements by the
translator because Correa’s language-conduit theory test “no
longer survives” post-Crawford. According to Navarro, Nazemian,
9
supra, 948 F.2d 522, the case from which the Correa court
adopted its multi-factor test, is irreconcilable with Crawford.
(See, e.g., United States v. Charles (11th Cir. 2013) 722 F.3d
1319, 1327-1329 [rejecting the language-conduit theory in light of
Crawford and its progeny and concluding admission of a Creole-
speaking defendant’s translated statements made in an
interrogation by a Customs and Border Protection officer violated
the Confrontation Clause because the defendant did not have an
opportunity to cross-examine the interpreter].)5 Because Navarro
failed to raise this argument at trial, it has also been forfeited.
(See Franz v. Board of Medical Quality Assurance (1982) 31
Cal.3d 124, 143 [appellate courts generally will not consider
arguments raised for the first time on appeal].)
Moreover, even if we chose to address Navarro’s
Confrontation Clause claim on the merits, we would be unable to
resolve it in an intelligible manner because the record was not
adequately developed at trial. As noted, defense counsel did not
object to the translated transcripts of the bartender’s interviews
on Confrontation Clause grounds. No evidence or arguments were
presented on whether the translated statements fell within the
language-conduit theory under the Correa test.6 And neither the
5 In contrast with the Eleventh Circuit, the Ninth and Fifth
Circuits have held the language-conduit theory remains valid and
can still apply in the wake of Crawford and its progeny. (Hieng,
supra, 679 F.3d 1131, 1138-1141; United States v. Budha (5th
Cir. 2012) 495 Fed.Appx. 452, 454.) Additionally, the Fourth
Circuit has continued to apply the language-conduit theory post-
Crawford. (See, e.g., United States v. Vidacak (4th Cir. 2009) 553
F.3d 344, 352.)
6 The Attorney General suggests the language-conduit theory
should apply here because the English translations of the
10
prosecution nor Navarro offered evidence or argument at trial
about whether the translations were “testimonial” within the
meaning of Crawford and its progeny. The lack of information
essential to resolving Navarro’s Confrontation Clause claim
further supports our conclusion that the claim has been forfeited,
and may not be considered for the first time on appeal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
transcripts were prepared by a “court-certified translator.” So far
as we can tell, however, the record reflects the name of the
translation service, but does not indicate whether the translator
was court-certified. Indeed, although the parties (and therefore
we) refer to the English language version of the interviews as a
translation, the record does not reveal whether it was based on
the recording or its Spanish language transcription.
11