Filed 4/7/16 P. v. Navarro CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051065

         v.                                                            (Super. Ct. No. 14WF1783)

MARIA MARTHA NAVARRO,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Dan
McNerney, Judge. Affirmed.
                   John N. Aquilina, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland,
Scott C. Taylor, and Kristen Hernandez, Deputy Attorneys General, for Plaintiff and
Respondent.
              Maria Martha Navarro was convicted by a jury of carjacking and receiving
stolen property. The court suspended imposition of sentence and placed her on probation
for three years.
              Navarro challenges the sufficiency of the evidence to support the carjacking
conviction, and the adequacy of the court’s carjacking instructions. We reject both
challenges and affirm the judgment.
                                         FACTS
              In April 2014, Navarro took Chieu Crowe’s Jeep Patriot from a Sam’s Club
parking lot. Police arrested Navarro driving Crowe’s Jeep the same day. At the time,
Navarro had a man’s wallet and Frank Moreno’s driver’s license with her. When police
contacted Moreno, he had the key to a stolen 2005 Honda CRV in his pants pocket.1
              Video surveillance footage from outside Sam’s Club, showed Navarro and
Moreno drove the stolen Honda CRV into the Sam’s Club parking lot, parked, and went
into the store. Video footage from inside the store showed them pushing a shopping cart.
              Crowe arrived in her Jeep a few minutes later. She also parked and entered
the store. On the way in, Crowe grabbed a shopping cart, and she put her wallet and car
keys on the cart shelf. As Crowe shopped, she walked the aisles and chatted on the
phone. At one point, she parked her shopping cart near a store display, which partially
blocked the camera’s view, and then walked away from her cart and out of frame. She
had her phone in one hand and wallet in the other.
              About four minutes later, Navarro and Moreno pushed their shopping cart
next to Crowe’s cart. Moreno walked away while Navarro transferred a couple of items
from her cart to Crowe’s cart before abandoning her cart and rejoining Moreno. A few
minutes later, Moreno and Crowe left the store apparently empty handed.



       1  The prosecution joined Moreno and Navarro’s cases for trial, but Moreno is not
a party to this appeal.

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              When Crowe returned to her cart a few minutes later, she realized her Jeep
keys were gone. Crowe reported the incident to store employees. She walked outside to
check on her Jeep and then back inside to see if anyone returned her keys. She was
standing near the store entrance when she heard a “beep” and realized someone had
started her Jeep.
              Crowe testified she ran to her Jeep as Navarro backed out of the parking
space. Crowe got close enough to grab the driver’s door handle with her left hand.
Crowe said she screamed “This is my car. What are you doing in my car[,]” as she
opened the driver’s door. Navarro then looked at her, grabbed the door, slammed it
closed “with both . . . hands,” and accelerated forward.
              Crowe claimed she was shocked, afraid, and felt helpless when Navarro
closed the car door and accelerated away. As she testified, “I felt threatened because she
could have ran over my foot or something. She just sped away.” Crowe said she realized
the incident took mere seconds, but she testified “it felt like a long time to me.”
              The surveillance footage is grainy and taken from an unfortunate angle.
The driver’s side of the Jeep is never fully visible, and Navarro backs out of frame at the
point Crowe first comes into contact with her Jeep. Nevertheless, Crowe can be seen
running with her Jeep as Navarro accelerates forward. The visible portion of the driver’s
door closes, and Crowe’s left arm flies out and up. However, the camera angle and
distance make it impossible to clearly see the driver’s door.
              Navarro did not testify. In closing, Navarro’s attorney argued, “Now, in
that video, it contradicts Ms. Crowe’s testimony. You see in one motion the car pull out
of the spot, Ms. Crowe go up to the car where Ms. Navarro is and within two to three
seconds, you will have the video and be able to count how long, just a brief amount of
time, in one motion the car drives out and the door is still open. You can see that in the
video. [¶] There’s no evidence in the video that the door was slammed shut or pulled
from the hands of Ms. Crowe. The door doesn’t shut at all. Even if the door shut, that’s

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what it takes to steal a car. You have to put your foot on the gas, shut the door and drive
away, even if you don’t believe the video. That’s what it takes to steal a car. It
[carjacking] has to be more than that. The force can’t be incidental. It can’t be incidental
force or the force needed just to carry away the car. And that’s all that there is here. The
car is moving the whole time.”
                                       DISCUSSION
1. Sufficiency of the Evidence
              As below, Navarro admits stealing Crowe’s Jeep, but she denies using force
or fear in the process. The applicable standard of review requires this court to “consider
the evidence in a light most favorable to the judgment and presume the existence of every
fact the trier could reasonably deduce from the evidence in support of the
judgment. . . . The test is whether substantial evidence supports the decision, not whether
the evidence proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey
(1992) 2 Cal.4th 408, 432.) We do not reweigh the evidence, resolve factual conflicts, or
determine witness credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
              “A conviction of carjacking requires proof that (1) the defendant took a
vehicle that was not his or hers (2) from the immediate presence of a person who
possessed the vehicle or was a passenger in the vehicle (3) against that person’s will (4)
by using force or fear and (5) with the intent of temporarily or permanently depriving the
person of possession of the vehicle.” (People v. Magallanes (2009) 173 Cal.App.4th 529,
534 (Magallanes); Pen. Code, § 215, subd. (a).)
              Two things defeat Navarro’s challenge to the sufficiency of the force or
fear evidence. First, her use of force argument rests on a false factual premise and patent
disregard for the standard of review. No matter how many times Navarro maintains
otherwise, the parking lot surveillance footage, such as it is, does not directly contradict
Crowe’s testimony. As noted, the camera angle and film quality prevent a clear view of
the driver’s door at the critical moment. But the surveillance footage is essentially

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neutral, neither supporting, nor undermining, either version of events. It shows the
driver’s door closes as the Jeep accelerates. However, Crowe’s arm swings out in a
manner consistent with her having the driver’s door handle ripped from her hands.
              Moreover, Crowe testified Navarro grabbed the driver’s door with both
hands, wrested it from Crowe’s control, and slammed it shut while she accelerated away.
Crowe’s testimony, if believed, is sufficient to sustain the verdict. (People v. Barnes
(1986) 42 Cal.3d 284, 303-304, 306 [absent inherent improbability or apparent falsity, the
testimony of one witness, if believed, is sufficient to sustain a conviction].) So there is
substantial evidence Navarro used force to take or keep possession of the Jeep.
              Second, even assuming there were insufficient evidence Navarro used
force, the crime of carjacking is committed when either “force or fear” is present.
(Magallanes, supra, 173 Cal.App.4th p. 534.) Fear has both a subjective and objective
component (People v. Iniguez (1994) 7 Cal.4th 847, 857-858; People v. Brew (1991) 2
Cal.App.4th 99, 104), and express threats are not necessary to prove fear. (Magallanes,
at p. 534.) In fact, a defendant’s brazen behavior can suffice to create a reasonable sense
of fear in the victim. (Ibid., citing People v. Flynn (2000) 77 Cal.App.4th 766, 771-773.)
              Here, according to Crowe’s testimony, she ran after her Jeep, grabbed the
driver’s door, and repeatedly yelled at Navarro. But, Navarro did not stop. Instead, she
looked at Crowe, grabbed the door from Crowe’s hands, and accelerated. Crowe testified
she was shocked and afraid of injury when Navarro drove away, because of Crowe’s
close proximity to a moving car. Given the circumstances, Crowe’s subjective fear was
objectively reasonable, and her testimony constitutes substantial evidence Navarro used
fear to take or keep possession of the Jeep. Thus, the crime she committed was
carjacking. (People v. O’Neal (1997) 56 Cal.App.4th 1126, 1131 (O’Neal).)
              We find O’Neal particularly instructive. In O’Neal, the victim parked his
truck in the driveway, left it unlocked, and put the keys under a floor mat. (O’Neil,
supra, 56 Cal.App.4th p. 1128.) The next morning, the victim was awakened by the

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sound of a starting truck engine. (Ibid.) The victim ran out of his home, down the front
steps, and toward his moving truck. (Ibid.) As O’Neal backed the victim’s truck out of
the driveway, the victim repeatedly yelled at O’Neal to stop the truck. (Ibid.) He
pounded on the driver’s window and tried to open the driver’s door. (Ibid.) O’Neal held
down the door lock and told the victim to “‘get away,’” as he accelerated onto a highway.
(Ibid.) The victim jumped into the truck bed in an effort to recover his property, but he
soon surrendered the truck to the defendant. (Ibid.)
              O’Neal argued that he committed a vehicle theft, not carjacking. He
challenged the “immediate presence” element by relying on robbery principles. (O’Neil,
supra, 56 Cal.App.4th p. 1131.) The court observed, “Just as ‘a mere theft becomes
robbery if the perpetrator, having gained possession of the property without use of force
or fear, resorts to force or fear while carrying away the loot’ [citation], so mere vehicle
theft becomes carjacking if the perpetrator, having gained possession of the motor vehicle
without use of force or fear, resorts to force or fear while driving off with the vehicle.”
(Ibid.) Here, even if Navarro had gained possession of Crowe’s Jeep without use of force
or fear, there is substantial evidence she used force or fear to keep possession of it.
2. Instructional Error
              Using CALRIM No. 1650, the court instructed that a carjacking conviction
required the People to prove the following elements beyond a reasonable doubt:
              “1. The defendant took a motor vehicle that was not his or her own.
              “2. The vehicle was taken from the immediate presence of a person who
possessed the vehicle.
              “3. The vehicle was taken against that person’s will.
              “4. The defendant used force or fear to take the vehicle or to prevent that
person from resisting; AND
              “5. When the defendant used force or fear to take the vehicle, he or she
intended to deprive the person of the vehicle either temporarily or permanently.”

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               In addition, the court gave two optional paragraphs. One defined “fear” as
the “fear of injury to the person himself or herself or injury to the person’s family or
property or immediate . . . injury to someone else present during the incident or to that
person’s property.” The other defined “immediate presence” by stating, “A vehicle is
within a person’s immediate presence if it is sufficiently within her control so that she
could keep possession of it if not prevented by force or fear.”
               Navarro argued she did not use force or fear to take Crowe’s Jeep. In light
of her defense, and relying on robbery cases,2 she requested the following pinpoint
instruction:
               “The use of force required in the crime of carjacking must be more than
that which is necessary to accomplish the taking of the motor vehicle. A touching of
another which is incidental to the commission of the taking does not satisfy the element
of ‘force’ required in the crime of carjacking.”
               “The law says that the possession of the vehicle must be gained by force or
fear. [Citation.] It is not enough that force or fear existed, The force or fear must be the
means by which the taking was accomplished. [Citation.]”
               After lengthy discussion with counsel, the court refused to give Navarro’s
pinpoint instruction for two reasons. First, unlike fear, “force” has no peculiar meaning
under the carjacking statute. (People v. Anderson (1966) 64 Cal.2d 633, 640.) The court
agreed with Navarro’s carjacking/robbery analogy, but observed that she was “essentially
asking the court to provide the jury further definition on, something our Supreme Court
says just apply the plain simple common meaning.”




       2 If Navarro submitted points and authorities in support of her application for the
pinpoint instruction, they were not made part of the record. From the discussions
between the court and counsel, we discern an effort to apply cases involving so-called
Estes robberies. (People v. Estes (1983) 147 Cal.App.3d 23, 27-28.)

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              Second, the court feared Navarro’s proposed instruction would be
confusing to the jury and potentially prejudicial to both parties. Because the standard
carjacking instructions are complete and adequate, there was no need to risk either
confusion or prejudice.
              Navarro asserts the court committed reversible error by refusing her
pinpoint instruction. Not so.
              In general, criminal defendants have a “‘right to have the jury determine
every material issue presented by the evidence.’” (People v. Flood (1998) 18
Cal.4th 470, 480-483; Cal. Const., art. VI, § 13.) Our Supreme Court has said that “‘in
appropriate circumstances’ a trial court may be required to give a requested jury
instruction that pinpoints a defense theory of the case . . . .” (People v. Bolden (2002) 29
Cal.4th 515, 558.) But “a trial court need not give a pinpoint instruction if it is
argumentative [citation], merely duplicates other instructions [citation], or is not
supported by substantial evidence [citation].” (Ibid.)
              According to the Attorney General, Navarro’s pinpoint instruction was
duplicative of CALCRIM No. 1650’s fourth paragraph, “The defendant used force or fear
to take the vehicle or to prevent that person from resisting[.]” We agree, to some extent.
However, as the trial court observed, parts of Navarro’s pinpoint instruction are
confusing at best. For example, the references in the pinpoint instruction to the “force”
for carjacking being “more than that which is necessary to accomplish the taking,” and a
“touching” that is more than “incidental to the commission of the taking” muddled, rather
than clarified these elements. Where, as here, the standard instruction is plain and
adequate, there is no error in denying a duplicative and potentially confusing pinpoint
instruction. (People v. Garceau (1993) 6 Cal.4th 140, 189, overruled on other grounds in
People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
              Moreover, Navarro’s reliance on cases describing the taking aspect of
robbery appears to be misplaced. (See People v. Morales (1975) 49 Cal.App.3d 134,

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139 [force for robbery must be more than “just that quantum of force which is necessary
to accomplish the mere seizing of the property”].) While robbery and carjacking are
similar, because both involve theft with the use of force or fear, the court rightly decided
to avoid confusion with Navarro’s choice of phrasing and legal concept mash-up.
              Here, the court’s carjacking instructions were adequate. Navarro’s pinpoint
instruction was confusing and duplicative. Thus, there was no error.
                                      DISPOSITION
              The judgment is affirmed.




                                                  THOMPSON, J.

WE CONCUR:



O’LEARY, P. J.



ARONSON, J.




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