1

Filed 6/27/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. ALFONSO NAVARRO, Defendant and Appellant. H049055 (Santa Clara County Super. Ct. No. C2007608)

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT: It is ordered that the opinion filed herein on June 14, 2023, be modified as follows. On page 11, delete the first full paragraph in its entirety and replace it with:

“Defendant contends two criminal justice administration fees imposed as part of his sentence (one in the amount of $129.75 and one in the amount of $259.50) are no longer valid and must be vacated. The Attorney General concedes that under legislation effective July 1, 2021, criminal justice administration fee s are no longer collectible. (See Gov. Code, § 29550.1, subd. (b).) As those fees are no longer statutorily authorized, on

resentenc ing no criminal justice administration fee may be imposed.”

There is no change in the judgment. The petition for rehearing is denied.2

Dated: _______________

______________________________________ GREENWOOD, P.J.

______________________________________ GROVER, J.

______________________________________ DANNER, J.

H049055 The People v. Navarro1

Filed 6/14/23 P. v. Navarro CA6 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent,

v.
ALFONSO CASTILLO NAVARRO, Defendant and Appellant. H049055 (Santa Clara County Super. Ct. No. C2007608)

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 ax e 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 , resu lting 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 misstatement s 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 w e will vacate the fee
order and remand t he case for resentencing under the standards now in effect.2 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 pick up 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. B ullets 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
k neeling in the front yard, throwing dirt in the air. Defendant stepped in front of the van and yelled t o the woman that he was going to kill her. He pulled an ax e 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 fro m the ax e strikes

. Defendant later tried to smash in the front door of someone’s home with the ax e

. 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 lo aded 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 bulle t 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; a ttempted burglary; second degree robbery; assault with a semiautomatic firearm (two counts); grossly negligent discharge of a firearm; and3

carrying a loaded firearm. The charging document included special allegations of p rior
strike convictions and commit ting 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. P O STPONING D EFENDANT ’ S T RIAL B ECAUSE OF THE COVID

- 19 P ANDEMIC WAS N OT AN A BUSE OF D ISCRETION 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 informati on. (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
C ourt 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 ca se 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 co urt 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 would4

normally use. H earings and tr ials 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 requir ing 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 tria ls].) Defendant’s citation to Bullock v. Superior Court (2020) 51 Cal.App.5th 134 does not change our view. That case held p andemic

- related courtroom closures did not justify continuance of the defendant’s preliminary hearing beyond the 10

- court day st atutory deadline. (See Pen. Code, § 859b.) But in so holding, the court specifically noted the5

increased urgency of conducting preliminary hearing s , given the risk of detaining a defendant for a prolonged period on a groundless complaint. ( Bullock v. Su perior 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 pr eliminary hearing for a defendant in custody. ” ( Ibid .) F inding 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 a ny state procedural right, we conclude there
was no federal constitutional violation. ( Stanley v. Superior Court , supra , 50 Cal. App.5th 164, 170.) B. J OINING THE C ASES FOR T RIAL W AS N OT AN A BUSE OF D ISCRETION
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 cor responding 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. ( I bid .)6

D efendant has not made that clear showing here. He points out th e evidence was not readily cross

- admissible from one case to the next, given the different circumstances
of each offense . But the absence of cross

- admissib ility alone does not establi sh prejudice sufficient to constitute an abuse of discretion in joining separate cases. T he presence of

cross

- admissible evidence defeats any claim of prejudice from joinder , but the converse
is not true. ( People v. Sandoval (199 2 ) 4 Cal.4th 155, 173.)
Defendant also asserts the ax e 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 g un at people. Even considering the age of the victims, t he ax e attack is not so much more shocking than the other charged conduct as to make it irrational to de cide it was not disproportionately likely to inflame the jury.
Defendant also asserts weak cas es 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 offense s . 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 evid ence 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 on e case is comparatively weaker than an other , 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 trial s

. C. S UBSTANTIAL E VIDENCE S UPPORTS THE A XE A SSAULT C ONVICTION S Defendant contends his conviction s for assault w ith a deadly weapon based on attacking the four occupants of the minivan with an ax e are not supported by substantial7

evidence. Our standard of review is deferential : w e review the record in the light most
favorable to the judgment for evidence from whic h 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 th e 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 th e 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.5 th 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 possibi lity 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 ax e in a manner likely to produce serious injury, because the victims were inside the minivan throughout the attack to the van’s front exterior

. T he 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 serious8

injury had it landed slightly higher. The evidence is s ufficient to support the jury’s
decision. D. C OUNSEL W AS N OT I NEFFECTIVE
Defendant contends his trial counsel was ineffective for not object ing to

statements by the prosecutor during closing argument describing the concept s of
reasonable doubt and the burd en 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 th e 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 int o 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 bec ause 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

statement s , 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, even9

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 t he cou rt ’s instruct ions 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. D EFENDANT IS E NTITLED TO THE B ENEFIT OF R ECENT C HANGES TO P ENAL C ODE 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

- 2 021 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 facto r 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 impo sed 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 r elied in imposing sentence would have been10

found true , assess likelihood of same sentence being imposed absent factors not meet ing
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 eas ily satisf ied. 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 consider ing only those aggravati ng 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 o f 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 t here is no legitimate dispute about those things. Whether the crime involved

“ great violence , ” however, is a mor e subjective determination . W e 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 al l nine counts without considering the aggravating factor that the crimes involved great violence. As that factor carries significant weight in the sentencing calculus, w e find it reasonably probable the court would not have imposed the upper term on at le ast one of the relevant convictions had the jury declined to find true
that great violence was involved. Because of the reasonable probability of a different11

result, we will remand for resentencing under the requirements of the current version of
Penal Co de section 1170, subdivision (b)(2). F. A C RIMINAL J USTICE A DMINISTRATION F EE IS N O L ONGER A UTHORIZED 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 Ge neral 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 ad ministration 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 t o proceed on the current record. After the prosecution makes that election, the trial court shall resentence defendant according to the current law.____________________________________ Grover, J.

WE CONCUR:

____________________________ Greenwood, P. J.

____________________________ Danner, J.

H049055 The People v. Navarro