People v. Navarro CA2/6

Filed 3/4/14 P. v. Navarro CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B245484 (Super. Ct. No. 2011005398) Plaintiff and Respondent, (Ventura County)

v.

JUSTO MORA NAVARRO,

Defendant and Appellant.

Justo Mora Navarro appeals from the judgment entered following his conviction by a jury of the second degree murder of Gilberto Aguilera (Pen. Code, §§ 187, subd. (a), 189)1 and threatening to commit a crime against Javier Viorato that would result in death or great bodily injury (criminal threats). (§ 422, subd. (a).) As to the murder conviction, the jury found true an enhancement allegation that appellant had personally and intentionally discharged a firearm. (§ 12022.53, subd. (d).) As to the criminal threats conviction, the jury found true an enhancement allegation that appellant had personally used a firearm. (§ 12022.5, subd. (a).) For second degree murder with the enhancement, appellant was sentenced to prison for 40 years to life. For criminal threats with the enhancement, he was sentenced to a consecutive term of 7 years.

1 All statutory references are to the Penal Code.

Appellant contends that (1) the trial court erroneously instructed the jury on the lesser included offense of heat of passion voluntary manslaughter, and (2) he was denied the effective assistance of counsel. We affirm. Facts People's Evidence Appellant and Gilberto Aguilera were partners in a flower-growing business. They had a falling out, and Aguilera sued appellant. The lawsuit was settled in November 2010. Appellant was living in a trailer on the premises of another flower-growing business, Don Jose Nursery, which was owned by Jose Valerio. Valerio knew Aguilera and arranged to meet with him at the nursery on February 1, 2011. Javier Viorato drove Aguilera to the nursery in Viorato's truck. Upon arriving at the nursery, Aguilera and Viorato got out of the truck. Valerio was not present, so they decided to wait for him. Appellant walked toward Aguilera and Viorato. He yelled: " 'Hey, . . . you motherfuckers. You better leave from here because . . . I don't want you guys right here. You guys better get out right now.' " Aguilera replied that they were going to stay because they were waiting for the owner and appellant did not have the authority to order them to leave. Appellant responded, " 'We'll see.' " Appellant walked away, but a short time later drove his truck to where Aguilera and Viorato were standing. Appellant stopped the truck and yelled in Spanish through the open window, " 'Are you guys . . . gonna leave or not?' " Aguilera replied, " 'No because Don Jose [i.e., Jose Valerio] told me to wait for him.' " Appellant opened the driver's door, got out, and "grabbed something from the back of the truck." He walked toward Aguilera. When appellant was about two steps away, he shot Aguilera in the abdomen with a shotgun. Before the shooting, Aguilera did not threaten appellant and did not try to hit or grab him. There was no struggle. After the shooting, Aguilera tried to grab the shotgun but was unable to do so. He fell down on his