Filed 7/22/13 P. v. Nava CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JAVIER NAVA,

Defendant and Appellant.

 B238947

 (Los Angeles County

 Super. Ct. No. KA092372)

APPEAL from a judgment of the Superior Court of Los Angeles County, Douglas 

Sortino, Judge. Affirmed. 

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and 

Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

__________
2

A jury convicted Javier Nava of first degree murder and found true special 

allegations he had personally used and intentionally discharged a firearm causing death. 

On appeal Nava contends the evidence was insufficient to support his conviction and the 

trial court erred in denying his request for a pinpoint jury instruction on third party 

culpability. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

Nava was charged in an information filed June 16, 2011 with murder (Pen. Code, 

§ 187, subd. (a)).

1

 The information specially alleged Nava had personally used and 

intentionally discharged a firearm causing death (§§ 12022.53, subds. (b)-(d); 12022.5, 

subd. (a)). Nava pleaded not guilty and denied the special allegations.

2. The Evidence at Trial

In the early morning of June 29, 2010 the body of Nava‟s girlfriend, Carmen 

Placencia, was found wrapped in a plastic shower curtain on the shoulder of the 

Interstate 210 freeway. The body had been set on fire and was still burning when 

firefighters found it. Placencia had been shot in the face; a large exit wound was found at 

the back of her neck. The coroner testified the gunshot had severed her spinal cord and 

caused her immediate death. Forensic testing revealed gasoline had been applied to the 

body at the scene after she was killed. The caliber of firearm used in the shooting could 

not be determined. 

Los Angeles County Sheriff‟s Department investigators searched Nava‟s home 

and his car, a Lincoln Navigator. They found a five-gallon gas can with only a minute 

quantity of gas inside, a plastic bag containing two black tennis shoes apparently 

belonging to Nava and a latex glove with six .357 caliber bullets inside it. DNA testing 

revealed Placencia‟s blood on one of the tennis shoes. A blood smear matching 

Placencia‟s DNA profile was also discovered on the rear seat of Nava‟s Navigator. 

 

1 Statutory references are to the Penal Code.
3

Plastic grocery bags found in Nava‟s kitchen bore the same manufacturing lot number as 

the one found wrapped around Placencia‟s head at the time her body was discovered.

Sheriff‟s Department investigators found Placencia‟s cell phone with her blood 

smeared on it in a purse in her bedroom. Detectives also found tiny droplets of blood in 

Nava‟s house. DNA testing showed one blood sample found on the wall of Nava‟s home 

matched Placencia‟s DNA profile. Other blood samples found in Nava‟s home included 

combined DNA from Placencia and “probably” Nava; but statistically Nava could not be 

included or excluded with a high degree of certainty. The criminologist, Cristina 

Gonzales, also acknowledged one of those mixed samples included alleles that did not 

match either Placencia‟s or Nava‟s DNA. One explanation, she acknowledged, was that 

there was a contributor of DNA other than Nava or Placencia; however, another 

reasonable explanation, she testified, was that the alleles could be an artifact from the 

amplification process used to analyze the DNA and not, in fact, DNA at all. 

Merced Morales, Nava‟s landlord, testified she had seen Nava‟s Navigator parked 

on the street in front of his home the morning of June 28, 2010. She did not see 

Placencia‟s car, a Toyota 4Runner. When she returned home in the afternoon, she saw 

both the Navigator and the 4Runner parked on the street. Around 5:00 p.m. Nava asked 

Morales if he could park his truck in the back of the driveway, an unusual request 

Morales thought because he had never parked there before. Nava told her he was going 

to sell some things and move out. Morales saw Placencia with Nava at 6:00 p.m. that 

evening. The next morning Morales saw the Navigator parked in the driveway but the 

4Runner was gone. Later that day, Morales saw Nava washing the inside of his 

Navigator. 

Nava worked as a security guard, but was not licensed to carry a gun and did not 

use one for his job. Sometime in June 2010, while Placencia was still alive, Nava had 

asked another security guard where he could buy a cheap gun. 

Nava did not testify. His theory at trial was that he had touched Placencia‟s body 

after she had been killed, as evidenced by the blood belonging to Placencia found on the 

top of his right tennis shoe, but he did not kill her. He also argued there was no motive, 
4

no evidence he was the perpetrator, no evidence of express or implied malice and no 

evidence of premeditation or deliberation. 

3. The Verdict and Sentence

The jury convicted Nava of willful, deliberate and premeditated murder (§ 189) 

and found true the special allegations he had personally used and intentionally discharged

a firearm resulting in death. Nava was sentenced to an aggregate state prison term of 50 

years to life, 25 years to life for first degree murder, plus 25 years to life for the 

intentional discharge of a firearm causing death (§ 12022.53, subd. (d)).

2

 

DISCUSSION

1. Substantial Evidence Supports the Jury’s Verdict

Nava contends there was insufficient evidence he killed Placencia, acted with 

premeditation and deliberation or intentionally discharged a firearm.

3

 None of these 

contentions has merit.

 

2 Sentence on the remaining firearm enhancements found true by the jury was 

imposed and stayed. (See § 12022.53, subd. (f); People v. Gonzalez (2008) 43 Cal.4th 

1118, 1129-1130.) 

3 When considering challenges to the sufficiency of the evidence, we “review the 

whole record to determine whether any rational trier of fact could have found the 

essential elements of the crime or special circumstances beyond a reasonable doubt. 

[Citation.] The record must disclose substantial evidence to support the verdict—i.e., 

evidence that is reasonable, credible, and of solid value—such that a reasonable trier of 

fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying 

this test, we review the evidence in the light most favorable to the prosecution and 

presume in support of the judgment the existence of every fact the jury could reasonably 

have deduced from the evidence. [Citation.] „Conflicts and even testimony [that] is 

subject to justifiable suspicion do not justify the reversal of a judgment, for it is the 

exclusive province of the trial judge or jury to determine the credibility of a witness and 

the truth or falsity of the facts upon which a determination depends. [Citation.] We 

resolve neither credibility issues nor evidentiary conflicts; we look for substantial 

evidence. [Citation.]‟ [Citation.] A reversal for insufficient evidence „is unwarranted 

unless it appears “that upon no hypothesis whatever is there sufficient substantial 

evidence to support”‟ the jury‟s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 

357.)
5

a. Nava as perpetrator

The evidence at trial showed Placencia‟s blood was found on Nava‟s shoe, his car 

and in his home; Placencia‟s body was burned with gasoline and a nearly empty gas can 

was found in Nava‟s car; bullets were also found in his car as was a latex glove, the latter 

providing some explanation for why Nava‟s fingerprints were not found on items 

wrapped around Placencia‟s body or left at the scene. Placencia was last seen with Nava 

the night she was killed; and no evidence or explanation was offered for the presence of 

her blood on Nava‟s shoe, in his home or in his car. This evidence, albeit largely 

circumstantial, was more than sufficient to support the jury‟s finding Nava was the 

perpetrator. (See People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 [“Although it is the 

jury‟s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two 

reasonable interpretations, one of which suggests guilt and the other innocence, it is the 

jury, not the appellate court that must be convinced of the defendant‟s guilt beyond a 

reasonable doubt. [Citation.] „“If the circumstances reasonably justify the trier of fact‟s 

findings, the opinion of the reviewing court that the circumstances might also reasonably 

be reconciled with a contrary finding does not warrant a reversal of the judgment”‟”]; 

People v. Tully (2012) 54 Cal.4th 952, 1006 [same].)

b. Premeditation and deliberation

Any murder that is “willful, deliberate, and premeditated” is murder of the first 

degree. (§ 189.) “A verdict of deliberate and premeditated first degree murder requires 

more than a showing of intent to kill. [Citation.] „Deliberation‟ refers to careful 

weighing of considerations in forming a course of action; „premeditation‟ means thought 

over in advance. [Citations.] „The process of premeditation and deliberation does not 

require any extended period of time. “The true test is not the duration of time as much as 

it is the extent of the reflection. Thoughts may follow each other with great rapidity and 

cold, calculated judgment may be arrived at quickly. . . .”‟” (People v. Koontz (2002) 

27 Cal.4th 1041, 1080.) 

In People v. Anderson (1968) 70 Cal.2d 15, the Supreme Court identified three 

categories of evidence relevant to deciding the issue of premeditation and deliberation: 
6

(1) planning activity, (2) motive, and (3) manner of killing. (Id. at pp. 26-27; accord, 

People v. Steele (2002) 27 Cal.4th 1230, 1249.) The list was not intended to be 

exhaustive or require the identified factors to appear in any specific combination or be 

afforded any particular weight. (People v. Pride (1992) 3 Cal.4th 195, 247; People v. 

Perez (1992) 2 Cal.4th 1117, 1125.) The Anderson factors are “descriptive,” rather than 

“normative,” and are not a “sine qua non” to finding first degree premeditated murder. 

(People v. Memro (1995) 11 Cal.4th 786, 863-864; accord, People v. Bolin (1998) 

18 Cal.4th 297, 331; see Steele, at p. 1249 [Anderson factors are simply “intended to 

guide an appellate court‟s assessment whether the evidence supports an inference that the 

killing occurred as the result of preexisting reflection rather than unconsidered or rash 

impulse”].)

Contrary to Nava‟s contention, there was ample circumstantial evidence of 

planning to support the jury‟s finding of first degree premeditated murder. (People v. 

Anderson, supra, 70 Cal.2d at p. 25 [premeditation often established by circumstantial 

evidence].) In the weeks just prior to the killing, Nava, who was not licensed to carry a 

gun for his job as a security guard, inquired where he could obtain one. Hours before 

Placencia was killed, Nava requested to park his Navigator in the driveway, rather than 

on the street where he had always parked it. The jury could reasonably infer the aberrant 

arrangement was made in anticipation of transporting Placencia‟s body after Nava killed 

her. There was also evidence from which the jury could reasonably infer Nava had used 

gloves during the crime to prevent the discovery of his identity, supporting a finding the 

murder was planned rather than the result of an unconsidered or rash impulse. In 

addition, Placencia was killed by a single gunshot to the face; there was no evidence of a 

struggle or provocation. This, too, supported an inference of premeditation. (See People 

v. Marks (2003) 31 Cal.4th 197, 230 [a close-range shooting to the head or face without 

evidence of struggle or provocation supported premeditation finding].) 

c. Personal use and intentional discharge of firearm

For the same reason, we reject Nava‟s contention the evidence was insufficient to 

support the jury‟s finding he personally used and intentionally discharged a firearm 
7

causing death. The same evidence supporting a finding Nava killed Placencia was also 

sufficient to support the jury‟s finding he personally used and intentionally discharged the 

firearm causing Placencia‟s death. 

2. The Trial Court Properly Denied Nava’s Request for a Pinpoint Instruction on 

Third Party Culpability 

Based on the criminologist‟s testimony at trial that data in a raw DNA analysis of 

blood on the rug in Nava‟s house could be interpreted to suggest a third party was 

involved in the homicide, Nava requested a pinpoint jury instruction to highlight his 

third-party-culpability theory: “[T]he defendant has introduced evidence to show that 

some other persons committed the charged offenses. The prosecution has the burden of 

establishing beyond a reasonable doubt that it was the defendant who committed the 

charged offense. If, after considering all of the evidence, you have a reasonable doubt 

that the defendant was the person who committed the charged offense, you must find the 

defendant not guilty.” The trial court denied the request, explaining that, while Nava was 

certainly free to argue the theory of third party culpability, the instruction itself was 

unnecessary, as it was duplicative of other instructions. The trial court‟s ruling was 

proper.

The instruction Nava requested simply told the jury the prosecution had to prove 

beyond a reasonable doubt that he, rather than someone else, was the perpetrator of the 

crime. That instruction, as the trial court properly recognized, was fully covered by the 

reasonable doubt instructions in CALCRIM Nos. 220 and 521 given to the jury.

4

 

 

4 The jury was instructed with CALCRIM No. 220: “The fact that a criminal charge 

has been filed against the defendant is not evidence that the charge is true. You must not 

be biased against the defendant just because he has been arrested, charged with a crime, 

or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This 

presumption requires that the People prove a defendant guilty beyond a reasonable doubt. 

Whenever I tell you the People must prove something, I mean they must prove it beyond 

a reasonable doubt unless I specifically tell you otherwise. [¶] Proof beyond a 

reasonable doubt is proof that leaves you with an abiding conviction that the charge is 

true. The evidence need not eliminate all possible doubt because everything in life is 

open to some possible or imaginary doubt. [¶] In deciding whether the People have 

proved their case beyond a reasonable doubt, you must impartially compare and consider 
8

Accordingly, the denial of Nava‟s proposed pinpoint instruction was not error. (See 

People v. Panah (2005) 35 Cal.4th 395, 486 [“[a] trial court is not required to give 

pinpoint instructions that merely duplicate other instructions”]; People v. Bolden (2002) 

29 Cal.4th 515, 558-559 [“instruction that does no more than affirm that the prosecution 

must prove a particular element of a charged offense beyond a reasonable doubt merely 

duplicates the standard instructions defining the charged offense and explaining the 

prosecution‟s burden to prove guilt beyond a reasonable doubt”]; People v. Hartsch 

(2010) 49 Cal.4th 472, 504 [“[w]e have noted that similar instructions [on third party 

liability] add little to the standard instruction on reasonable doubt”].) 

Moreover, even if failure to give the requested instruction was error, it was plainly 

harmless in light of the reasonable doubt instructions given. (People v. Hartsch, supra, 

49 Cal.4th at p. 500 [“[w]e have also held that even if such instructions properly pinpoint 

the theory of third party liability, their omission is not prejudicial because the reasonable 

doubt instructions give defendants ample opportunity to impress upon the jury that 

evidence of another party‟s liability must be considered in weighing whether the 

prosecution has met its burden of proof”]; People v. Ledesma (2006) 39 Cal.4th 641, 720-

721 [same].)

 

all the evidence that was received throughout the entire trial. Unless the evidence proves 

the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you 

must find him not guilty.”

The jury was also instructed with CALCRIM No. 521, which provides in part, 

“The People have the burden of proving beyond a reasonable doubt that the killing was 

first degree murder rather than a lesser crime.” 
9

DISPOSITION

The judgment is affirmed.

PERLUSS, P. J. 

We concur:

ZELON, J.

SEGAL, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.