Filed 8/29/17 P. v. Navarro CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed.

Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Arturo Navarro of attempted murder (Pen. Code,[1] §§ 664, 187, subd. (a); count 1) and arson of an inhabited structure (§ 451, subd. (b); count 2). The jury did not find true the allegation that the attempted murder was premeditated and deliberate (§ 189).

In a separate trial, a jury found Navarro guilty of robbery (§ 211; count 3). Navarro admitted a prison prior, two strike priors, and two prior serious felony convictions.

The court sentenced Navarro to prison for an aggregate term of 20 years plus 50 years to life, consisting of 25 years to life on count 1, plus two consecutive five-year terms for each of his prior serious felony convictions, and 25 years to life on count 3, plus two consecutive five-year terms for each of his prior serious felony convictions. Per section 654, the court imposed but stayed a 25-year-to-life sentence, plus two consecutive five-year enhancements for his prior serious felony convictions under count 2.

Navarro appeals, contending substantial evidence does not support his convictions under counts 1 and 2. In addition, he argues the trial court improperly admitted lay opinion evidence warranting the reversal of his convictions for counts 1 and 2. We conclude Navarro's convictions under counts 1 and 2 are supported by substantial evidence. In addition, we find Navarro forfeited his challenge to the improper lay opinion. However, even if we were to address the merits of Navarro's claim, we would determine that any error in admitting the opinion testimony is harmless. As such, we affirm.

FACTUAL BACKGROUND[2]

Prosecution

On October 2, 2014, Seana Erevia and her friend Robin Truex were running errands in Truex's neighborhood in San Diego when they ran into Navarro. Erevia had dated Navarro intermittently from August to September 2014. He would not leave the two women alone as they were talking although they asked him to leave. Navarro walked with them to Truex's residence. The women again asked him to leave, but Navarro stood underneath the stairway leading to Truex's apartment.

Truex and Erevia left the apartment to go to dinner at a restaurant. They returned to Truex's apartment around midnight to find Navarro walking down the nearby alley. Erevia got in her car to leave, but Navarro tried to convince her to let him in the car. She refused and drove home.

Erevia went to sleep when she got home, but was awakened sometime between 1:30 and 2:00 a.m. by Navarro, who claimed to have entered through an unlocked sliding glass door in Erevia's apartment. Erevia and Navarro argued about whether the door had been unlocked as well as other things that Erevia had been unhappy with. When the two eventually calmed down, Navarro told Erevia he was "horny." She told him she was on her period. Navarro began stroking and then pulling Erevia's hair. He also choked her and began masturbating. Navarro had never done any of these things with Erevia before, and she noticed that he had a "black" look in his eyes, "a look [she] had never seen before." Navarro seemed angry. Erevia pushed him off the bed, and Navarro said he was hungry. Navarro left Erevia's bedroom saying he was going to make a quesadilla.

Erevia fell asleep at about 3:21 a.m. Sometime after she fell asleep, Navarro took Erevia's watch and her cell phone battery from her nightstand. In addition, after Navarro left Erevia's bedroom, the bedroom door was closed.

At about 3:30 a.m., Erevia's downstairs neighbor, Robert Conry, was outside smoking a cigarette. While he was smoking, he saw Navarro leave Erevia's apartment. Despite that Navarro had, in the past, stopped to talk with Conry or ask him for a cigarette, he walked past Conry, with his head down.

Conry went back inside and within four or five minutes, he heard smoke alarms. After looking out the back window and seeing no fire, he looked out the front window and saw smoke coming from Erevia's bedroom window.

Erevia awoke sometime later, believing she needed to answer the door. When she opened her bedroom door, the heat from the fire hit her like a "force field," and she felt as if she could not walk out into the hallway. It was very dark, and she could not see in the hallway.

Erevia ran to the open window in her bedroom so she could breathe fresh air. The heat was so intense in her bedroom that it began burning her back and buttocks. Erevia climbed out of her window to escape the heat. She dangled there while neighbors gathered pillows to break her fall.

As Erevia hung from the window, firefighters arrived and helped Erevia down a ladder and then escorted her to a waiting ambulance. She told them her cat and another person were still inside the apartment. At the hospital, Erevia was treated for first and second degree burns on her back and buttocks and smoke inhalation.

Fire investigators arrived to investigate the scene. Both Lawrence Gordon, a certified fire investigator, and Ed Filio, a captain and certified fire investigator with the City of San Diego Fire Department, independently investigated the scene. Gordon and Filio used a systematic approach (working from the area of least damage to most damage) and the scientific method to reach their conclusions on origin and cause.

Both concluded, based on the burn patterns found in the living room, that the fire's area of origin was an armchair in the living room. The burn pattern on the wall behind the chair started at the top of the chair, indicating that a fire burned upward and outward from that chair, forming a " 'V' pattern." After eliminating all accidental causes of fire, as well as any natural cause of fire (e.g., lightning), Gordon and Filio both determined that the cause of the fire was incendiary, i.e., the fire was started by an open flame, "intentionally set by human hands."

Defense

Defense Investigator Brenda Hall testified that when she interviewed Erevia, Erevia stated that she believed Navarro's behavior with her in bed on the night of the incident was part of their "S and M" "sex play." Erevia stated that she had discussed "S and M" with Navarro before the incident.

San Diego Police Detective Malacha Fuller testified that she interviewed Conry on the day after the fire and Conry stated that he noticed the fire within 20 minutes after going back inside his apartment on the night of the incident.

DISCUSSION

I

SUBSTANTIAL EVIDENCE

A. Navarro's Contention

Navarro asserts substantial evidence does not support his conviction for attempted murder and arson. We disagree.

B. Standard of Review

When considering a defendant's challenge to the sufficiency of the evidence, we review the entire record most favorably to the judgment to determine whether the record contains substantial evidence from which a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. We do not reweigh evidence or reassess a witness's credibility and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We ask whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the allegations to be true beyond a reasonable doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 319.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Nelson (2011) 51 Cal.4th 198, 210.)

C. Analysis

"A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property." (§ 451.) Navarro argues substantial evidence does not support his conviction for arson because there was no physical or direct evidence establishing that he started the fire. He acknowledges that the circumstantial evidence raised a "strong suspicion" that he committed arson, but such evidence "was insufficient to result in a conviction." Navarro thus appears to assert that a jury could only convict him of arson if the prosecution presented direct evidence proving he started the fire. However, he does not provide us with any authority to support this position. To the contrary, "the very nature of the crime of arson ordinarily dictates that the evidence will be circumstantial." (People v. Beagle (1972) 6 Cal.3d 441, 449.) Consequently, the lack of direct evidence to establish a defendant's guilt does not render the jury's verdict of guilty of arson deficient. (People v. Maler (1972) 23 Cal.App.3d 973, 983.)

Here, we are satisfied that substantial evidence supports the jury's verdict that Navarro committed arson. The testimony of the two fire inspectors established that the fire was set intentionally and originated on the chair in the living room. It was undisputed that Navarro was in Erevia's apartment on the night of the incident, having entered the apartment while Erevia was asleep. Navarro's behavior was strange. He pulled Navarro's hair and choked her while masturbating. Erevia testified that Navarro had a "black" look in his eyes. She rebuffed Navarro's sexual advances, ultimately pushing him off the bed. He went into the kitchen to get something to eat and Erevia went back to sleep. When Erevia awoke minutes later, her apartment was on fire. And Navarro was seen leaving her apartment shortly before the neighbors noticed the fire. There was no other evidence that anyone else was in Navarro's apartment on the night in question. Against this foundation, we conclude that a rational trier of fact could find the essential elements of the crime of arson beyond a reasonable doubt. (See People v. Lindberg, supra, 45 Cal.4th at p. 27.)

Navarro next insists that even if he did start the fire, substantial evidence did not establish he did so with the intent to kill Erevia. Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Ervine (2009) 47 Cal.4th 745, 785.) Attempted murder thus requires express malice, that is, the assailant either desires the victim's death, or knows, to a substantial certainty that the victim's death will occur. (See People v. Smith (2005) 37 Cal.4th 733, 739.)

Here, relying on People v. Belton (1980) 105 Cal.App.3d 376 (Belton), Navarro argues the evidence is insufficient to establish his intent to kill Erevia. That case is distinguishable from the instant matter.

The defendant in Belton, supra, 105 Cal.App.3d 376 was convicted of arson and attempted murder after setting fire to the porch of his ex-wife's apartment after visiting with her earlier in the day. The appellate court reversed the attempted murder conviction because, apart from a quarrel three months earlier, there was no evidence of any threats, continued bad blood, or earlier attempts to harm the ex-wife. In rejecting the People's reliance upon the prior domestic disturbance, the court stated:

"We think any deduction of murderous intent from a quarrel three months earlier is entirely speculative and conjectural. On the night of the fires the parties spent the day drinking together in reasonable tranquility. No threats or talk of arson had been advanced, then or earlier. Nothing in the evidence supports an inference that in starting these fires defendant wanted to murder anyone. It would be equally plausible to speculate that he started the fires to impoverish his ex-wife by destroying her property, or, as suggested by some of the evidence, that he wanted the apartment building modernized and rebuilt at the insurance company's expense (which in fact happened)." (Id. at p. 380.)

In reaching its conclusion, the appellate court noted that the mere act of setting fire to an inhabited building is insufficient, absent additional evidence, to demonstrate intent to kill. (Id. at p. 381.)

The additional evidence of intent the court found lacking in Belton, supra, 105 Cal.App.3d 376, is present here. Navarro and Erevia had an awkward if not unfriendly interaction on the night in question, when Erevia rejected Navarro's sexual advances. Navarro knew Erevia was sleeping in the bedroom down the hall from where he started the fire. After starting the fire, Navarro did not warn Erevia about what he had done. Instead, he took her watch and cell phone battery upon leaving the apartment. He even closed the bedroom door when he left, which the jury could have interpreted as a step to further delay Erevia from noticing her apartment was on fire. We conclude that a trier of fact reasonably could have found that Navarro, in starting a fire while Erevia was asleep and closing her bedroom door, was substantially certain that Erevia would be killed. (See People v. Booker (2011) 51 Cal.4th 141, 178.) Substantial evidence supports the conviction for attempted murder.

II

THE ADMISSION OF FULLER'S OPINION REGARDING

CONROY'S INTERVIEW STATEMENT

A. Navarro's Contention

Navarro maintains the trial court improperly allowed testimony from Detective Fuller about the inconsistencies between Conry's trial testimony and his own statements during the investigation. Navarro asserts Fuller's testimony constitutes improper vouching for Conry's veracity. Although we find Navarro forfeited this challenge by failing to object during trial, we determine that any error in admitting Fuller's testimony was harmless.

B. Background

The prosecution called Conry during its case-in-chief. Among other things, Conry testified that he was outside his apartment having a cigarette around 3:30 a.m. when he saw Navarro leave Erevia's apartment. After finishing his cigarette, Conry went into his apartment and heard fire alarms about four or five minutes later.

During cross-examination, Navarro's counsel asked Conry, "And you also told Detective Fuller that after you saw that person pass, you went back inside, and within 20 minutes, you heard a smoke detector, right?" Conry responded, "Okay." This was Navarro's counsel's last question, and the prosecutor did not have any other questions for Conry.

The defense subsequently called Fuller as a witness. Defense counsel asked Fuller about a telephone interview of Conry: "And then he -- what did he tell you about the time frame between the time he saw that person and the time he noticed evidence of a fire?" Fuller responded, "He said it was within 20 minutes from when he went inside the house."

On cross-examination, the prosecutor attempted to address the timing of when Conry saw Navarro and when he heard the fire alarms. He questioned Fuller as follows:

"Q.: Detective Fuller, let me just ask you some more in the context of talking to Mr. Conry. He did tell you he was outside smoking, right?

"A.: Why.

"Q.: And then within the 20 minutes of seeing that individual leave, he said that there was -- the fire department had been there, he had heard the smoke alarms and that the whole incident occurred within that time frame, correct?

"A.: Yes.

"Q.: And you know the fire call-out was about 3:56, correct?

"A.: Yes.

"Q.: Doing simple math, but 20 minutes behind 3:56 is 3:36.

"A.: Yes.

"Q.: Okay. So the time frame of 3:36 to 3:56 is when he said this incident had occurred, correct?

"A.: Correct.

"Q. When he described this incident, he said it was within this time frame of the 20 minutes, still not inconsistent with what he had seen this person five minutes before -- he had heard the alarm, came out, told his girlfriend all that stuff still within that same time frame, correct?

"[Defense counsel]: I will object. Counsel is testifying.

"The Court: Well, sustained. You can rephrase the question.

"[Prosecutor]: Sure. Of course.

"The Court: Based on your experience and training and 21 years

as a detective, et cetera.

"[Prosecutor]: Sure. . . .

"Q.: When you took the statement from him, it was a brief statement, correct?

"A.: Correct.

"Q.: And the statement you wrote down, is it still consistent with what he was talking about, the same time frame you had heard him testify yesterday.

"A.: Correct."

The prosecutor asked no further questions of Fuller. Defense counsel also declined to ask Fuller any additional questions.

C. Analysis

Navarro challenges Fuller's testimony in response to the prosecutor's questioning as improper opinion testimony. As a threshold matter, the People contend Navarro forfeited this issue by failing to object during trial. In response, Navarro maintains defense counsel objected that the testimony was impermissible opinion from the prosecutor, which the court sustained but then invited the prosecutor to reframe the question as an opinion based on Fuller's experience and training. We disagree with Navarro's reading of the transcript.

Defense counsel objected to the prosecution's question of Fuller, not because it was improper opinion testimony, but instead, because the prosecutor was testifying. In other words, defense counsel's objection was more akin to challenging the prosecutor asking a leading question as opposed to asking a question to elicit improper opinion testimony. The court sustained the objection and suggested that the prosecutor rephrase the question based on Fuller's experience. Defense counsel did not object to the court's suggestion or otherwise argue that the court was allowing Fuller to offer an improper opinion. Nevertheless, the prosecutor did not lay further foundation as to Fuller's experience or training. He simply asked the detective a few more background details about the interview with Conry (e.g., was it brief) and then asked if the statement Conry made was consistent with Conry's trial testimony, to which, Fuller responded in the affirmative. There was no objection whatsoever that the prosecutor was asking Fuller to provide improper opinion testimony. With this foundation in mind, we agree with the People that Navarro forfeited this challenge here. (People v. Abel (2012) 53 Cal.4th 891, 924; People v. Kennedy (2005) 36 Cal.4th 595, 612; Evid. Code, § 353.)

However, even if we were to address Navarro's challenge on the merits, we would not find reversal warranted because the admission of Fuller's testimony was harmless error. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

Navarro argues that the trial court permitted the prosecutor to question Fuller, in her expert opinion, whether Conry's testimony and prior statement were consistent. The record is less than clear if Fuller testified as an expert. The court suggested that the prosecutor rephrase his question and ask the question based on Fuller's experience and training. Although the prosecutor rephrased the question, he did not lay foundation to support the conclusion that Fuller was an expert witness. Nevertheless, whether Fuller was an expert witness is not critical to our analysis.

Qualified experts may express opinions on issues beyond common understanding (Evid. Code, §§ 702, 801, 805), but opinions or views on veracity do not meet the standards for admission of expert testimony (People v. Melton (1998) 44 Cal.3d 713, 744). Credibility questions are generally not the subject of expert testimony. (People v. Smith (2003) 30 Cal.4th 581, 628.) Nor is an opinion as to the veracity of a witness admissible as lay opinion. (People v. Sergill (1982) 138 Cal.App.3d 34, 40.) "Lay opinion about the veracity of particular statements by another is inadmissible on that issue." (Melton, supra, at p. 744.) Such opinions, by those who have no personal knowledge of the facts, are of little assistance in deciding the credibility of testimony by percipient witnesses who do have personal knowledge. (People v. Chatman (2006) 38 Cal.4th 344, 382 (Chatman).) With limited exceptions, it is the fact finder, not the witnesses, who must draw the ultimate inferences from the evidence. (Melton, supra, at p. 744.) An attempt to usurp the jury's function could violate due process. (§ 1126 [jury's fact-finding province].)

At trial, the jury was presented with two different versions of when Conry noticed the fire alarm. Conry testified at trial that after he saw Navarro walk past him, he went into his apartment, and heard the fire alarms about four or five minutes later. Fuller testified that Conry told her that he heard the fire alarms within 20 minutes of going into his apartment.[3] Fuller testified that Conry's statement to her was consistent with his trial testimony. Navarro maintains that Fuller was offering improper opinion testimony, essentially vouching for Conry's veracity. The People counter that defense counsel placed Conry's veracity at issue, and as such, Fuller could clarify the alleged "discrepancies that the defense attempted to raise about Conry's interview with Detective Fuller on direct examination." Navarro has the better argument.

The People contend that Fuller's testimony was appropriate under Chatman, supra, 38 Cal.4th 344. The defendant in Chatman testified in his defense and doing so contradicted several prosecution witnesses who testified the defendant told them he stabbed and killed the victim. (Chatman, supra, at pp. 355-356, 377-378.) The prosecutor asked the defendant whether the prosecution witnesses were lying and what motives they would have to lie. (Id. at p. 383.) The questions were proper, our high court explained, because the defendant "had personal knowledge of the conversations he had with the other witnesses, and they were all friends or relatives. He could provide relevant, nonspeculative testimony as to the accuracy of their information and any motive for dishonesty." (Ibid.) Regarding whether any of the witnesses harbored any biases that might motivate them to lie, the court concluded that, "[a]t least when, as here, the defendant knows the witnesses well, we think questions regarding any basis for bias on the part of a key witness are clearly proper." (Ibid.)

Here, there is no indication that Fuller had any personal knowledge of Conry that would allow the detective to provide "relevant, nonspeculative testimony as to the accuracy of [Conry's] information and any motive for dishonesty." (Chatman, supra, 38 Cal.4th at p. 383.) Instead, the prosecutor asked Fuller to opine whether Conry's testimony that four to five minutes passed from when he saw Navarro until he noticed the fire was consistent with his earlier statement to Fuller that he noticed the fire within 20 minutes of Navarro leaving. Fuller had no personal knowledge that would allow her to testify that the two time frames are consistent with each other. (See People v. Sergill, supra, 138 Cal.App.3d at p. 39-40.) Accordingly, we conclude Fuller's testimony was improper opinion, and the trial court erred in admitting it. (See People v. Melton, supra, 44 Cal.3d at p. 744.)

Even though the trial court erroneously admitted Fuller's opinion regarding the consistency of Conry's testimony and statement, it is not reasonably probable that the error affected the verdict. (Watson, supra, 46 Cal.2d at p. 836.) The evidence against Navarro was strong regardless whether the jury believed Conry noticed the fire five minutes after Navarro passed or within 20 minutes. Erevia fell back asleep at about 3:21 a.m. Conry saw Navarro leave Erevia's apartment around 3:30 a.m. The first call out to the fire department to respond to the fire was at 3:56 a.m. Thus, the fire had to have been started somewhere between 3:21 a.m. and 3:56 a.m. Navarro was the only person seen leaving Erevia's apartment during the relevant time frame.

Earlier that evening, while Erevia was asleep, Navarro had let himself into her apartment where he and Erevia had a bizarre encounter, which included him choking Erevia and pulling her hair. Erevia refused Navarro's sexual advances, and Navarro ultimately closed Erevia's bedroom door, left the apartment, taking Erevia's watch and cell phone battery. And two expert witnesses testified that the fire was man made and began on the chair in the apartment living room. Further, the trial court fully instructed the jury on evaluating witness credibility.

Whether Conry noticed the fire somewhere between four and 20 minutes after he saw Navarro leave does not undermine the strong circumstantial evidence of Navarro's guilt. Simply put, the admission of Fuller's testimony could not have affected the verdict.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

DATO, J.