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,                                                          B238947

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA092372)
         v.

JAVIER NAVA,

         Defendant and Appellant.




         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.
                                                     __________
       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,
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§ 187, subd. (a)). 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.

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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,

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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
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intentional discharge of a firearm causing death (§ 12022.53, subd. (d)).
                                        DISCUSSION
       1. Substantial Evidence Supports the Jury’s Verdict
       Nava contends there was insufficient evidence he killed Placencia, acted with
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premeditation and deliberation or intentionally discharged a firearm. 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.)

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              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:

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(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

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

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

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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.”

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                                    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.

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