Filed 6/14/23 P. v. Navarro CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049055
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2007608)
v.
ALFONSO CASTILLO NAVARRO,
Defendant and Appellant.
A jury convicted defendant Alfonso Navarro of 13 offenses stemming from his
robbery at a Home Depot, shooting at a man during an altercation on the highway, and
swinging an axe at the occupants of a minivan. Defendant contends the judgment must
be reversed because his trial was postponed due to emergency measures taken during the
COVID-19 pandemic, resulting in the denial of his right to a speedy trial. He also argues
that separately filed cases were improperly tried together. He contends there is
insufficient evidence to support his convictions for assault with a deadly weapon, and that
his counsel was ineffective for not objecting to the prosecutor’s misstatements about the
burden of proof during closing argument. Finally, he requests a remand for resentencing
in light of recent legislation that could reduce his sentence, and he asks us to vacate
certain fees no longer authorized by law.
We find no error affecting defendant’s convictions. But we will vacate the fee
order and remand the case for resentencing under the standards now in effect.
I. BACKGROUND
Defendant was tried by jury on charges arising from three separate incidents. The
first was a shooting. Defendant was driving on the shoulder of the highway when he
sideswiped a pickup truck in the far left lane. The driver got out and confronted him,
kicking out the taillight of defendant’s vehicle. Defendant drew a handgun and fired
three shots at the other driver, who scrambled for cover. Bullets pierced the truck’s
windshield.
The second incident was an unprovoked attack on a minivan occupied by a woman
and her three daughters, ages 3, 10, and 14. The woman was visiting her uncle, and knew
defendant as her uncle’s neighbor. As she pulled into the driveway she saw defendant
kneeling in the front yard, throwing dirt in the air. Defendant stepped in front of the van
and yelled to the woman that he was going to kill her. He pulled an axe from his pants
and started swinging it, hitting the minivan five or six times. The woman’s daughters
were screaming as she put the van into reverse and backed out of the driveway. There
were “holes all over the place” around the front of the minivan from the axe strikes.
Defendant later tried to smash in the front door of someone’s home with the axe. Police
responded and defendant led them on a high-speed vehicle pursuit that ended when he
crashed his car and was taken into custody. Defendant had a loaded revolver and two
hatchets in his car.
In the third incident, defendant stole a backpack and copper wiring from a Home
Depot. As he was leaving the store, an employee asked to see his receipt and defendant
pulled out a gun and shot at her, the bullet striking the pavement about 20 feet from
where she stood.
The district attorney charged defendant with 14 counts: assault with a deadly
weapon (four counts); felony vandalism; felon in possession of a firearm (two counts);
evading a peace officer; attempted burglary; second degree robbery; assault with a
semiautomatic firearm (two counts); grossly negligent discharge of a firearm; and
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carrying a loaded firearm. The charging document included special allegations of prior
strike convictions and committing offenses while on bail. The jury convicted defendant
of all charges at trial (the attempted burglary count having been earlier dismissed for
insufficiency of evidence). Defendant was sentenced to a prison term of 33 years four
months.
II. DISCUSSION
A. POSTPONING DEFENDANT’S TRIAL BECAUSE OF THE COVID-19 PANDEMIC
WAS NOT AN ABUSE OF DISCRETION
Defendant contends the trial court was incorrect to deny his motion to dismiss the
case for failure to commence trial within 60 days of arraignment on the information.
(Pen. Code, § 1382, subd. (a)(2).) Under the statute, the court must dismiss an action not
timely tried unless the prosecution shows good cause for the delay. (Ibid.)
Defendant’s trial was continued beyond the 60-day statutory deadline because of
courtroom closures resulting from the COVID-19 pandemic. In March 2020, about a
month after defendant’s arraignment, the Chief Justice of the California Supreme Court
issued an emergency order authorizing superior courts to extend by 60 days the statutory
deadline for bringing felony cases to trial, due to the pandemic’s impact on the day-to-
day operation of the courts. The presiding judge of the Santa Clara County Superior
Court issued a corresponding order extending the deadline for trial in felony cases in the
county. Both the Chief Justice and the Santa Clara County presiding judge later issued
orders to further extend those deadlines.
Defendant moved to dismiss his case because it was not brought to trial within 60
days of arraignment. The trial court denied the motion, finding the circumstances
described in the emergency order extending the statutory deadline constitute good cause
for the delay. Specifically, the court noted the pandemic required the court to reduce its
services to comply with statewide COVID-19 mitigation orders designed to protect the
public. The court was at that time using approximately half the courtrooms it would
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normally use. Hearings and trials were being conducted, but priority was given to certain
proceedings such as sentencing hearings that would result in a defendant’s release and
bail motions challenging pretrial confinement. That prioritization created a backlog of
jury trials. As a result, a number of trials, including defendant’s, were continued beyond
the statutory deadline.
We review the denial of a motion to dismiss for abuse of discretion. (People v.
Hajjaj (2010) 50 Cal.4th 1184, 1197.) That is a deferential standard requiring that we
affirm the ruling unless it is outside the boundaries of what the law allows or is so
irrational that no reasonable person could agree with it. (People v. Johnson (2022)
12 Cal.5th 544, 605.) Defendant has not shown the trial court abused its discretion in
finding good cause for a continuance beyond the statutory deadline based on pandemic-
related courtroom closures. Those circumstances plainly constitute good cause. (See
Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 170 [trial court “unquestionably
was justified” in continuing jury trial beyond statutory deadline due to ongoing COVID-
19 pandemic].)
Operating courthouses at less than full capacity was a reasonable measure to
protect public health during a generational pandemic. And prioritizing cases where an
individual could be entitled to immediate release from custody after a short hearing, even
at the expense of postponing jury trials, was likewise not unreasonable under the
extraordinary circumstances. (See Hernandez-Valenzuela v. Superior Court (2022)
75 Cal.App.5th 1108, 1130 [backlog of jury trials caused by earlier pandemic-related
court closure constituted good cause for continuance even where the defendant showed
there were courtrooms available for trials].)
Defendant’s citation to Bullock v. Superior Court (2020) 51 Cal.App.5th 134 does
not change our view. That case held pandemic-related courtroom closures did not justify
continuance of the defendant’s preliminary hearing beyond the 10-court day statutory
deadline. (See Pen. Code, § 859b.) But in so holding, the court specifically noted the
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increased urgency of conducting preliminary hearings, given the risk of detaining a
defendant for a prolonged period on a groundless complaint. (Bullock v. Superior Court,
at p. 156.) The court recognized that “preliminary hearings and trials involve different
considerations” and therefore “circumstances in a pandemic that constitute good cause to
continue a trial may not constitute good cause to continue a preliminary hearing for a
defendant in custody.” (Ibid.) Finding good cause to continue defendant’s trial here is
consistent with the reasoning expressed in Bullock.
Defendant also asserts that postponing his jury trial violated his constitutional
right to due process as a violation of a procedural trial right guaranteed by state law.
Given that we have found no abridgment of any state procedural right, we conclude there
was no federal constitutional violation. (Stanley v. Superior Court, supra,
50 Cal.App.5th 164, 170.)
B. JOINING THE CASES FOR TRIAL WAS NOT AN ABUSE OF DISCRETION
Defendant moved in limine to sever the three cases filed against him and have
each tried separately. The trial court denied the motion. We review the denial of a
motion to sever for abuse of discretion, bearing in mind the law favors joinder of cases
for trial because of the corresponding efficiency. (People v. Simon (2016) 1 Cal.5th 98,
122.)
A trial court is statutorily conferred with broad discretion to join separately filed
cases for “two or more different offenses of the same class of crimes or offenses.”
(Pen. Code § 954.) Factors to consider in evaluating the exercise of that discretion are
(1) whether the evidence relating to the various charges would be cross-admissible in
separate trials; (2) whether any of the charges are unusually likely to inflame the jury
against the defendant; and (3) the relative strength of the cases proposed for joinder.
(People v. Simon, supra, 1 Cal Cal.5th 98, 123.) To establish an abuse of discretion, a
defendant must make a “clear showing” of potential prejudice under those factors. (Ibid.)
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Defendant has not made that clear showing here. He points out the evidence was
not readily cross-admissible from one case to the next, given the different circumstances
of each offense. But the absence of cross-admissibility alone does not establish prejudice
sufficient to constitute an abuse of discretion in joining separate cases. The presence of
cross-admissible evidence defeats any claim of prejudice from joinder, but the converse
is not true. (People v. Sandoval (1992) 4 Cal.4th 155, 173.)
Defendant also asserts the axe attack on the van, whose occupants included three
children, is an offense unusually likely to inflame the jury. But the other charged
offenses also involved flagrant conduct, and in those incidents defendant fired a gun at
people. Even considering the age of the victims, the axe attack is not so much more
shocking than the other charged conduct as to make it irrational to decide it was not
disproportionately likely to inflame the jury.
Defendant also asserts weak cases were joined with a strong case because the
Home Depot robbery was captured on video and was therefore exceptionally strong,
whereas the other two cases were weaker. But in our view neither of the other two cases
can be accurately characterized as weak given the eyewitness testimony describing
defendant’s commission of both offenses. Where that testimony was equivocal—in the
case of the shooting of the pickup truck driver, who was at the time of trial unable to
identify defendant—there was physical evidence to bolster the prosecution’s case: an
expert testified that marks on a shell casing from the scene matched defendant’s gun.
The proper focus is not whether one case is comparatively weaker than another, but
whether a case is weak or strong in the abstract. Defendant has not demonstrated the trial
court abused its discretion in refusing to conduct separate trials.
C. SUBSTANTIAL EVIDENCE SUPPORTS THE AXE ASSAULT CONVICTIONS
Defendant contends his convictions for assault with a deadly weapon based on
attacking the four occupants of the minivan with an axe are not supported by substantial
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evidence. Our standard of review is deferential: we review the record in the light most
favorable to the judgment for evidence from which a rational trier of fact could find the
elements of the crime established beyond a reasonable doubt. (People v. Tripp (2007)
151 Cal.App.4th 951, 955.) We do not substitute our judgment for that of the jury and
we presume the existence of every fact in favor of conviction that the jury could
reasonably infer. (People v. Medina (2009) 46 Cal.4th 913, 919.) To overturn a
conviction, “it must clearly appear that upon no hypothesis whatever is there sufficient
substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Assault with a deadly weapon requires proof the defendant attacked someone
using a deadly weapon in a manner that would directly and probably result in the
application of force to the victim. (CALCRIM No. 875.) A deadly weapon can be any
object used in a way likely to produce death or great bodily injury. (In re B.M. (2018)
6 Cal.5th 528, 532–533.) “Analysis of whether the defendant’s manner of using the
object was likely to produce death or great bodily injury necessarily calls for an
assessment of potential harm in light of the evidence.” (Id. at p. 535.) While the mere
possibility of serious injury is not enough, it is sufficient for the evidence to show serious
injury was likely, even if it did not ultimately occur. (Ibid.)
Defendant distinguishes use of the axe in a manner capable of producing injury
versus likely to do so. He argues the evidence is insufficient to prove that he used the axe
in a manner likely to produce serious injury, because the victims were inside the minivan
throughout the attack to the van’s front exterior. The jury could have accepted that
argument, but there is sufficient evidence to support the contrary view it ultimately
adopted, namely that defendant used the axe in a manner likely to cause serious injury.
Victim testimony described defendant striking the van with an axe at least five times and
so hard it left holes in the metal paneling. Significantly, one of the strikes was to the
driver’s side door immediately below the window, which could have caused serious
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injury had it landed slightly higher. The evidence is sufficient to support the jury’s
decision.
D. COUNSEL WAS NOT INEFFECTIVE
Defendant contends his trial counsel was ineffective for not objecting to
statements by the prosecutor during closing argument describing the concepts of
reasonable doubt and the burden of proof. To prevail on a claim of ineffective assistance,
a defendant must show counsel’s performance fell short of what is considered reasonable
under professional norms, as well as a reasonable probability counsel’s deficient
performance affected the outcome. (People v. Campbell (2020) 51 Cal.App.5th 463,
504.) Defendant has not made that showing here.
Defendant identifies two statements that went without objection but which he now
asserts misstated the law to such a degree the jury was misled into convicting him:
(1) “And ask yourselves if, with the standard of reasonable doubt and with the tether of
reasonableness, what conclusion do you reach in this case? What conclusion would lead
you to believe the defendant is not guilty and whether or not that is reasonable, or
whether or not when you look at everything in this case, if the reasonable interpretation is
that the defendant is guilty of all of the charges.” (2) “And I would reiterate to you,
ladies and gentlemen, that when you look at all of the evidence in this case, and apply it
to the law that's before you, that the only reasonable conclusion that you would come to
is that the defendant is guilty as charged.”
We note that failure to object is rarely a basis for ineffective assistance because
deciding whether to object, even when there is a technical basis, is a strategic decision
left to trial counsel that will not be second guessed on appeal. (People v. Lopez (2008)
42 Cal.4th 960, 972.) Counsel here could reasonably have decided the prosecutor’s
statements, while not entirely clear, were not so problematic to warrant objecting and
potentially drawing the ire of the jury just before deliberations commenced. Although we
find the prosecutor’s statements did not clearly misrepresent the legal standard, even
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assuming they were misleading and the lack of objection was not strategic, we would find
no resulting prejudice. Defense counsel accurately described the standard for reasonable
doubt in closing argument, and the court’s instructions to the jury were also correct. We
see no probability of a different result had objections to the prosecutor’s statements been
made and sustained.
E. DEFENDANT IS ENTITLED TO THE BENEFIT OF RECENT CHANGES TO PENAL
CODE SECTION 1170
After defendant was sentenced, the Legislature amended Penal Code section 1170
to allow an aggravated prison term to be imposed only if the aggravating factors
supporting it are admitted by the defendant or found true by a jury. (Sen. Bill No. 567
(2020-2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3.) As an ameliorative change, that
legislation applies retroactively to this case that is not yet final on appeal. (In re Estrada
(1965) 63 Cal.2d 740, 747.) Defendant was sentenced to the aggravated term for nine of
the 13 counts he was convicted on. He seeks resentencing under the new standards
because he did not admit any of the aggravating facts relied on by the court nor did a jury
find them true.
Intermediate appellate courts are divided regarding the standard for determining
prejudice in this situation, and the issue is pending before the California Supreme Court.
(Compare People v. Flores (2022) 75 Cal.App.5th 495, 500 [remand not required if
appellate court concludes beyond a reasonable doubt that a jury would have found at least
one aggravating factor true] with People v. Lopez (2022) 78 Cal.App.5th 459, 466 [all
aggravating factors must have been found true beyond a reasonable doubt; if only some
factors would have been found true, it must be reasonably probable the same sentence
would have been imposed based on those] and People v. Dunn (2022)
81 Cal.App.5th 394, rev. granted Oct. 12, 2022, S275655 [if at least one aggravating
factor would have been found true beyond a reasonable doubt and it is reasonably
probable any remaining aggravating factors relied in imposing sentence would have been
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found true, assess likelihood of same sentence being imposed absent factors not meeting
that standard].) (Id. at p. 410.)
We agree with People v. Lopez, supra, 78 Cal.App.5th 459 and People v. Dunn,
supra, 81 Cal.App.5th 394 that the prejudice standard articulated by Flores—the error is
harmless if it is beyond a reasonable doubt that any aggravating factor would have been
found true—is too easily satisfied. In our view the proper approach is to determine which
aggravating factors relied on by the trial court would have been found true, beyond a
reasonable doubt, if decided by the jury; then to assess the probability of a different result
had the trial court been limited to considering only those aggravating factors in
sentencing.
The trial court relied on the following aggravating factors to impose upper term
sentences: (1) a prior prison term; (2) poor performance on parole and probation; (3) use
of a weapon in committing the offense; (4) discharge of a firearm in committing the
offense; and (5) the great violence involved in the offense. The prior prison term;
previous parole and probation violations; use of a weapon; and discharge of a firearm are
all factors that would have been found true beyond a reasonable doubt if decided by a
jury, as there is no legitimate dispute about those things. Whether the crime involved
“great violence,” however, is a more subjective determination. We cannot say beyond a
reasonable doubt the jury would have agreed with that characterization as to all of the
affected counts, particularly given that none actually resulted in significant physical
injury.
We therefore must decide the likelihood that the trial court would have still
imposed the upper term on all nine counts without considering the aggravating factor that
the crimes involved great violence. As that factor carries significant weight in the
sentencing calculus, we find it reasonably probable the court would not have imposed the
upper term on at least one of the relevant convictions had the jury declined to find true
that great violence was involved. Because of the reasonable probability of a different
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result, we will remand for resentencing under the requirements of the current version of
Penal Code section 1170, subdivision (b)(2).
F. A CRIMINAL JUSTICE ADMINISTRATION FEE IS NO LONGER AUTHORIZED
Defendant contends the $129.75 criminal justice administration fee imposed as
part of his sentence is no longer valid and must be vacated. The Attorney General
concedes that under legislation effective July 1, 2021, the criminal justice administration
fee is no longer collectible. (See Gov. Code, § 29550.1, subd. (b).) As that fee is no
longer statutorily authorized, on resentencing no criminal justice administration fee may
be imposed.
III. DISPOSITION
The judgment is reversed and the matter remanded for resentencing. Defendant’s
convictions shall remain. On remand, the prosecution may elect to proceed by meeting
the requirements of Penal Code section 1170, subdivision (b)(2) regarding aggravating
circumstances or may elect to proceed on the current record. After the prosecution makes
that election, the trial court shall resentence defendant according to the current law.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Danner, J.
H049055
The People v. Navarro