People v. Nava CA4/1
- Proceeding
- appeal from judgments
- Trial court
- Superior Court of San Diego County · No. SCD297834
- Trial judge
- Kimberlee A. Lagotta
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Joan K. Irion (author), O'Rourke, Laurence D. Rubin
Analysis
The trial court convicted Francisco Nava of assault with a firearm and possession of a firearm by a felon, and Diego Nava of attempted murder and possession of a machine gun, imposing sentences of 28 years 4 months and 32 years to life respectively after denying motions to strike enhancements. On appeal, the Court of Appeal affirmed the judgments after conducting an independent review of the record pursuant to Wende/Anders, finding no arguable issues of error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Diego Nava's motion to strike the firearm enhancement (§ 12022.53, subd. (d)) in the interest of justice“Whether the court abused its discretion in refusing to strike the firearm enhancement (§ 12022.53[, subd.] (d)) in the interest of justice.” | abuse of discretion | not reached | agree with court The opinion notes that counsel identified this as a 'possible issue' but the court states it 'has not identified any arguable grounds for reversal or modification.' In Wende/Anders proceedings, if the court finds the issue not arguable, it does not apply the standard of review to the merits but rather affirms based on the lack of arguable error. The court's view is that the issue is not arguable enough to warrant reversal. |
Denial of Francisco Nava's requests to strike his prior strike and dismiss the five-year enhancement for the serious felony prior“At sentencing, the trial court denied Francisco’s requests to strike his prior strike and dismiss the five-year enhancement for the serious felony prior.” | unclear | not reached | unsure The opinion mentions these denials in the factual background but does not list them as issues raised by counsel or analyzed in the discussion. The court's independent review found no arguable issues, implying these rulings were not found to be reversible error, but no specific standard or analysis is provided for these specific rulings in the text. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate court must conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires independent review of the record when counsel files a no-merit brief.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly identifies the Wende/Anders obligation to review the record when counsel raises no issues. It explicitly addresses the one 'possible issue' raised by Diego's counsel and concludes it is not arguable, which is the correct procedural outcome for such a brief. However, it provides no substantive legal analysis for why the issue is not arguable, which is typical for unpublished Wende affirmances but leaves the reasoning implicit.
How this analysis was made · dispute it
unusual dispositionFollowing a joint jury trial, the San Diego Superior Court sentenced Francisco Nava to 28 years four months for two counts of assault with a firearm with personal-use findings and felon in possession (with a prior strike and serious-felony prior), and sentenced Diego Nava to 32 years to life for premeditated attempted murder with a section 12022.53(d) enhancement and possession of a machine gun, denying both defendants' requests to strike priors and enhancements. On appeal, appointed counsel for each defendant filed Wende/Anders briefs raising no issues; the Court of Appeal consolidated the appeals, independently reviewed the record, found no arguable issue, and affirmed both judgments.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Diego Nava's motion to dismiss or reduce the section 12022.53 firearm enhancements in the interest of justice“The trial court also denied Diego’s motion to dismiss the firearm enhancements, finding that doing so would endanger public safety and that dismissal or reduction to a lesser enhancement would not be in the furtherance of justice.” | abuse of discretion | correct | agree with court Counsel flagged this as a possible but not arguable issue under an abuse-of-discretion standard. The trial court made the public-safety finding that forecloses the section 1385(c) presumption in favor of dismissal and expressly considered reduction to a lesser enhancement, so the record as described shows a reasoned exercise of discretion; the Court of Appeal's conclusion that no arguable issue exists is supported. |
Denial of Francisco Nava's requests to strike his prior strike conviction and to dismiss the five-year serious-felony enhancement“At sentencing, the trial court denied Francisco’s requests to strike his prior strike and dismiss the five-year enhancement for the serious felony prior.” | unclear | correct | agree with court The opinion reviews this only as part of its Wende independent review and does not articulate a standard, though such rulings are reviewed for abuse of discretion. Nothing in the described record (a prior strike, a prior serious felony, and armed violence against multiple victims) suggests the denial fell outside the bounds of reason, so the finding of no arguable issue is defensible. |
Imposition of upper-term sentences on Francisco Nava's principal count and firearm enhancement based on aggravating factors found at a bifurcated bench trial“With respect to Francisco, based on its weighing of the aggravating and mitigating factors, the trial court imposed an upper term sentence.” | unclear | correct | agree with court The opinion notes the aggravating factors were found in a bifurcated bench trial, which is consistent with section 1170(b) as amended by Senate Bill 567 so long as the defendant did not insist on a jury; the opinion does not detail the waiver but the Wende review found no arguable issue. On this limited record there is no identifiable legal error. |
Judgments of conviction and sentence for both defendants (Wende/Anders independent review)“We have independently reviewed the records for Francisco’s and Diego’s appeals, and we have found no arguable issue that would result in a modification or reversal of either of the judgments.” | unclear | correct | agree with court The court followed the Wende procedure: it summarized facts and procedure, noted the possible issue counsel identified, invited supplemental briefs from both defendants, and reviewed the entire record. The video evidence of the shootings and the Instagram corroboration of the automatic weapon described in the opinion support the verdicts, and the sentence computations recited appear arithmetically consistent with sections 1170.1 and 654. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no specific issues, the Court of Appeal must independently review the entire record for arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal, after which the court conducts its own examination of the record.
The appellate opinion: sound — The opinion correctly applies the Wende/Anders procedure, recites the facts and procedural history, identifies the one possible issue counsel raised, confirms both defendants were offered the chance to file supplemental briefs, and finds no arguable issue. Because it is a Wende affirmance, it necessarily does not engage in detailed analysis of the sentencing discretion rulings, but nothing in the recited record suggests an error was overlooked.
Opinion
Filed 4/18/25 P. v. Nava CA4/1 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 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D083903, D083923
Plaintiff and Respondent, v. (Super. Ct. No. SCD297834) DIEGO NAVA, Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent, v. (Super. Ct. No. SCD297834)
FRANCISCO NAVA,
Defendant and Appellant.
CONSOLIDATED APPEALS from judgments of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge. Affirmed. Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant Diego Nava. Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant Francisco Nava. No appearance for Plaintiff and Respondent.
Francisco Nava (Francisco) and Diego Nava (Diego) were convicted in a joint trial. The jury found Francisco guilty of two counts of assault with a firearm (Pen. Code,1 § 245, subd. (a)(2)) and one count of possession of a firearm by a felon. (§ 29800, subd. (a)(1).) On both of the assault counts the jury made a true finding that Francisco personally used a firearm. (§ 12022.5, subd. (a).) In a bifurcated proceeding, the trial court found that Francisco incurred a prior strike (§§ 667, subds. (b)–(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)). The jury found Diego guilty of one count of willful deliberate premeditated attempted murder (§§ 187, subd. (a), 189, 664), with further findings that Diego personally and intentionally used, possessed and discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)); and one count of possessing a machine gun (§ 32625, subd. (a)). Francisco was sentenced to prison for a term of 28 years four months. Diego was sentenced to prison for a term of 32 years to life. Francisco’s appointed appellate attorney and Diego’s appointed appellate attorney have each filed a brief on behalf of their respective clients in which they raise no claims of error and ask us to review the record 1 Unless otherwise indicated, all further statutory references are to the Penal Code.
2 independently for reversible error. (See People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) We have independently reviewed the records for Francisco’s and Diego’s appeals, and we have found no arguable issue that would result in a modification or reversal of either of the judgments. Accordingly, we affirm the judgments. I. FACTUAL AND PROCEDURAL BACKGROUND In the early morning hours of January 22, 2023, Diego and his uncle Francisco were spending time inside a bar when a fistfight took place, during which Francisco was punched. The man who punched Francisco, along with his companions, then exited the bar. Francisco and Diego followed the men outside. The fight inside the bar, along with the ensuing events on the street outside the bar, were recorded on multiple surveillance video cameras. The videos show that, once outside, Francisco pointed a firearm at one of the men who had exited the bar. Francisco next moved toward some of the other men. He punched one of those men and then fired a gun toward at least one other man. The videos show that Diego shot multiple times at the man toward whom Francisco had first pointed a gun. Two of Diego’s bullets made contact with the victim. One wound was to the man’s head; the other was to his left thigh. The man survived the shooting but incurred serious injuries. The muzzle flashes shown on the video indicate that Diego’s firearm was fully automatic, and statements made by Diego on his Instagram account corroborated that Diego possessed a fully automatic weapon. An amended information charged Francisco with two counts of attempted murder (§§ 187, subd. (a), 664) (count 4); three counts of assault with a firearm (§ 245, subd. (a)(2)), including allegations that he personally 3 used a firearm (§ 12022.5, subd. (a)) (counts 3, 5 & 6); and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 7). It was further alleged that Francisco incurred a prior strike (§§ 667, subds. (b)–(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)). The same amended information charged Diego with one count of willful deliberate premeditated attempted murder (§§ 187, subd. (a), 189, 664), including allegations that Diego personally and intentionally used, possessed and discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)) (count 1); and one count of possessing a machine gun (§ 32625, subd. (a)) (count 2). A jury convicted Francisco on counts 3, 5 and 7, along with making true findings on the firearm allegations in counts 3 and 5, but it found him not guilty on count 6 and was unable to reach a verdict on count 4. Count 4 was subsequently dismissed. The same jury convicted Diego on both count 1 and count 2, along with making true findings on the firearm allegations in count 1. In a bifurcated bench trial, the court found that Francisco incurred a prior strike and a prior serious felony, and it found the existence of several aggravating factors as to both Francisco and Diego. At sentencing, the trial court denied Francisco’s requests to strike his prior strike and dismiss the five-year enhancement for the serious felony prior. The trial court also denied Diego’s motion to dismiss the firearm enhancements, finding that doing so would endanger public safety and that dismissal or reduction to a lesser enhancement would not be in the furtherance of justice. With respect to Francisco, based on its weighing of the aggravating and mitigating factors, the trial court imposed an upper term sentence. Count 3 4 was selected as the principle term, with the four-year upper term doubled to eight years due to the prior strike, plus an upper term sentence of 10 years on the firearm enhancement (§ 12022.5, subd. (a)), for a total of 18 years on count 3. For count 5, the trial court imposed a consecutive term of five years four months, based on one-third of the three-year middle term doubled because of the strike, plus one-third of the 10 year firearm enhancement. For count 7, the trial court imposed but stayed pursuant to section 654 a concurrent four-year term based on the middle term of two years doubled due to the prior strike. To this sentence, the trial court added a five-year term for the serious felony prior. The result was a total sentence of 28 years four months. With respect to Diego, on count 1 the trial court imposed a sentence of 32 years to life with parole, composed of a seven-years-to-life term on the murder conviction and a term of 25 years to life for the firearm enhancement with the longest term (§ 12022.53, subd. (d)). On count 2 it imposed a two- year sentence, which it stayed pursuant to section 654. II. DISCUSSION Appointed counsel for both Francisco and Diego each filed a brief in which they summarized the relevant facts and proceedings, raised no claims of error regarding their respective clients, and asked us to conduct an independent review of the record for reversible error. (See Wende, supra, 25 Cal.3d at p. 441 [the appellate court must “conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues”].) We subsequently consolidated the appeals. Counsel for Francisco did not identify any possible, but not arguable, issues for our consideration. Counsel for Diego identified the following 5 possible issue: “1. Whether the court abused its discretion in refusing to strike the firearm enhancement (§ 12022.53[, subd.] (d)) in the interest of justice.” We advised both Francisco and Diego that they could file a supplemental brief, but neither of them did so. We have reviewed the entire record for both Francisco’s and Diego’s appeal, as required by Anders, supra, 386 U.S. 738, and Wende, supra, 25 Cal.3d 436, and we have not identified any arguable grounds for reversal or modification of either of the judgments. Both Francisco and Diego have received competent representation on appeal. DISPOSITION The judgments are affirmed.
IRION, J.
WE CONCUR:
O’ROURKE, Acting P. J.
RUBIN, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12