District Court, Salt Lake Department The Honorable Paul B.
Parker No. 141907986
Nathalie S. Skibine, Attorney for Appellant
D. Reyes and Karen A. Klucznik, Attorneys for Appellee
Michele M. Christiansen Forster authored this Opinion, in
which Judges Jill M. Pohlman and Diana Hagen concurred.
CHRISTIANSEN FORSTER, JUDGE
Two groups of rival gang members encountered each other and
began shooting. When the shooting stopped, a man in one group
was dead, killed instantly by a bullet that hit his neck and
severed his spine. Defendant Ernesto Navarro was in the other
group and was convicted of several charges including murder.
He now challenges those convictions on two grounds.
Defendant contends that he received constitutionally
ineffective assistance of counsel because (1) his trial
counsel failed to object on hearsay grounds to a
detective's testimony concerning another witness's
trial testimony and (2) his trial counsel failed to correct a
jury instruction that misstated the law regarding imperfect
self-defense. Because Defendant did not suffer prejudice from
the detective's testimony or the erroneous jury
instruction, we conclude that Defendant did not receive
constitutionally ineffective assistance of counsel. We
Victim, a gang member, was driving a stolen Chevrolet
Avalanche. His nephew (Nephew) was riding in the front
passenger seat while Victim's two nieces sat in the back.
The group encountered a sedan containing four members of a
rival gang. Traveling in the sedan were Defendant, Driver,
Passenger, and another individual who did not testify at
The sedan stopped to investigate a man wearing blue- the
color of a rival gang. According to Driver, if the person
belonged to a rival gang, "[they] would have got out and
fought with him or done anything, because if he's a rival
gang member, then usually [they] go and . . . do something to
him." However, the sedan occupants determined that the
man was not from a rival gang and continued driving. They
then noticed that the Avalanche was following them and that
it was driven by someone-Victim-wearing red, the color of
another rival gang.
People in both vehicles, including Defendant, began using
hand gestures to signal their gang affiliation, commonly
referred to as "throwing up gang signs." However,
Driver refused to stop the sedan because he sensed
"something was going to happen" and the sedan
belonged to his mother. Eventually, Driver drove down an
alley to elude the pursuing Avalanche.
After losing the Avalanche, Driver parked the sedan at
Defendant's apartment. They went inside "to get
something to drink" and turned on a video game console.
When they decided to leave the apartment, Defendant took his
gun with him because he "was concerned."
Defendant's group continued on foot. According to
Defendant, they left to go to the store to buy some food and
did not expect to meet the Avalanche occupants again. But
according to Driver, Defendant said, "Let's go get
these fools," and, according to Passenger, Defendant
said, "We got to do something about him if we see him
Meanwhile, after losing sight of the sedan, Victim drove off
to pick up three of his brothers-in-law, two of whom were
members of his gang and at least one of whom had a gun on his
person. With these reinforcements, Victim then began driving
around, looking for the sedan or Defendant's group
intending to fight them.
Victim eventually spotted the empty sedan. He continued
driving the Avalanche around until he found Defendant's
group walking down an alley. Victim stopped the Avalanche at
a right angle to the alley.
Shortly thereafter, a flurry of gunfire erupted, drawing the
attention of other nearby witnesses. One of the shots killed
Victim. Another wounded Nephew. Everyone in the Avalanche,
except Victim, scrambled to get out of the vehicle and then
fled. Defendant's group also ran away.
At least thirteen shots were fired. Police later found seven
spent bullet casings from Defendant's .40 caliber firearm
and five spent casings from Passenger's 9mm firearm in
the alley where Defendant's group had been standing.
Outside the driver's side passenger door of the
Avalanche, police found one spent casing and matched it to a
9mm gun found next to the driver's seat inside the
Defendant's group returned to his apartment, where he
took a shower to remove any gunshot residue. He then left the
apartment, taking both his and Passenger's guns, and
attempted to stash them where they would not be found by
police. According to Defendant, Passenger instructed him
"to not talk to the police," and threatened that if
Defendant did talk to police, "that would mean danger
[to Defendant's] life or [his] family."
Police officers eventually located and arrested Defendant.
When he was arrested, Defendant gave a false name. At trial,
Defendant admitted that he had lied to the arresting
officers. For example, he acknowledged that although he had
owned his gun for about six months, he told the arresting
officers that he had only received his gun on the day he was
arrested. Defendant further acknowledged that he lied to
police by telling them he had never been to the apartment
even though he had lived there for two months, and by telling
them that he had been working at a hospital on the day of the
Defendant was charged with murder, obstruction of justice,
and felony discharge of a firearm. Following a jury trial, he
was convicted on all counts.
AND STANDARD OF REVIEW
Defendant contends that he was deprived of his constitutional
right to effective assistance of counsel. See generally
Strickland v. Washington, 466 U.S. 668, 686 (1984)
("The benchmark for judging any claim of ineffectiveness
must be whether counsel's conduct so undermined the
proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.").
"When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court
ruling to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter
of law." Layton City v. Carr, 2014 UT App 227,
¶ 6, 336 P.3d 587 (quotation simplified).
Defendant contends that he was deprived of the effective
assistance of counsel in two ways. First, he asserts that his
trial counsel was ineffective for failing to object to
certain testimony he characterizes as hearsay. Second, he
asserts his counsel was ineffective for failing to object to
an erroneous jury instruction.
To demonstrate ineffective assistance of counsel, a defendant
must show that counsel's performance was deficient and
that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Because both deficient performance and resulting prejudice
are requisite elements for a claim of ineffective assistance
of counsel, failure to prove either ...