State Of Washington, Respondent V. Pedro Pablo Navarro, Appellant

PILED
'COURT OF APPEALS OW
STATE OF WASHINGTON
2019JAN 22 AMIO: 49
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
V.
PEDRO PABLO NAVARRO,
Appellant.
No. 77354-2-1
UNPUBLISHED OPINION
FILED: January 22, 2019
DWYER, J. — Following a jury trial, Pedro Pablo Navarro was convicted on
eight counts of communication with a minor for immoral purposes and on two
counts of extortion with sexual motivation. In this, his third appeal, Navarro avers
that the trial court committed reversible error when it denied his motion for a
continuance and for further reasons set forth in a statement of additional
grounds. We disagree with all of Navarro's contentions and affirm the trial court.
The facts giving rise to Navarro's conviction are set forth in State v.
Navarro, 188 Wn. App. 550, 552-53, 354 P.3d 22(2015). In that opinion, we
rejected Navarro's challenges to the imposition and term of sexual assault
protection orders and no-contact orders, to his waiver of the right to proceed pro
se, and his further arguments advanced in a statement of additional grounds.
Navarro, 188 Wn. App. at 553-58. However, we remanded to the trial court to
correct errors in the judgment and sentence. Navarro, 188 Wn. App. at 558-59.

No. 77354-2-1/2
Upon resentencing, the trial court erroneously added six months to Navarro's
sentence; Navarro again appealed and we reversed and remanded for correction
of that error. Before the trial court on the second remand, Navarro requested a
continuance for the purpose of preparing a challenge to the sufficiency of the
State's evidence that his crimes of extortion were committed with sexual
motivation. The trial court denied Navarro's request, opining that it did not have
discretion to decide any issues outside of this court's mandate. Navarro appeals
from this denial.
11
The State concedes that the trial court's reasoning in denying Navarro's
request was mistaken. Nevertheless, the State argues that reversal is not
warranted because Navarro cannot show any prejudice resulting from the denial.
We agree and affirm.
"[T]he decision to grant or deny a motion for a continuance rests within the
sound discretion of the trial court." State v. Downing, 151 Wn.2d 265, 272, 87
P.3d 1169(2004)(citing State v. Miles, 77 Wn.2d 593, 597, 464 P.2d 723
(1970)). Thus, we review a trial court's decision to deny a motion for a
continuance under an abuse of discretion standard. Downing, 151 Wn.2d at 272
(citing State v. Hurd, 127 Wn.2d 592, 594, 902 P.2d 651 (1995); Skagit Ry. &
Lumber Co. v. Cole, 2 Wash. 57, 62, 65, 25 P. 1077 (1891)). We will not disturb
the trial court's decision unless the appellant "makes 'a clear showing. . .[that
the trial court's] discretion [is] manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons." Downing, 151 Wn.2d at 272-73
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No. 77354-2-1/3
(alterations in original)(quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,
482 P.2d 775 (1971)).
Moreover,"even where the denial of a motion for continuance is alleged to
have deprived a criminal defendant of his or her constitutional right to compulsory
process, the decision to deny a continuance will be reversed only on a showing
that the accused was prejudiced by the denial and/or that the result of the trial
would likely have been different had the continuance not been denied." State v.
Tatum, 74 Wn. App. 81, 86, 871 P.2d 1123(1994)(citing State v. Eller, 84 Wn.2d
90, 95-96, 524 P.2d 242 (1974)).
As our Supreme Court has noted, "there are no mechanical tests for
deciding when the denial of a continuance violates due process, inhibits a
defense, or conceivably projects a different result; and, that the answer must be
found in the circumstances present in the particular case." Eller, 84 Wn.2d at 96
(citing State v. Cadena, 74 Wn.2d 185, 443 P.2d 826 (1968)). "In exercising
discretion to grant or deny a continuance, trial courts may consider many factors,
including surprise, diligence, redundancy, due process, materiality, and
maintenance of ordinary procedure." Downing, 151 Wn.2d at 273 (citing Eller, 84
Wn.2d at 95; RCW 10.46.080; CrR 3.3(f)). Additionally, good faith is an essential
component of an application for a continuance. State v. Edwards,68 Wn.2d 246,
258, 412 P.2d 747(1966). "If it is manifest that the request for recess or
continuance is designed to delay, harry, or obstruct the orderly process of the
trial, or to take the prosecution by surprise, then the court can justifiably in the
exercise of its discretion deny it." Edwards, 68 Wn.2d at 258.
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No. 77354-2-1/4
In the present case, the trial court's decision to deny Navarro's motion for
continuance was made on untenable grounds, which the State concedes.
However, to warrant reversal Navarro must show that he was prejudiced thereby
or that, but for the denial, the outcome of the proceeding would have been
different. This he has not done.
The due process clauses of the federal and state constitutions require that
the State prove every element of a crime beyond a reasonable doubt. Apprendi
v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);
U.S. CONST. amend. XIV, § 1; WASH. CONST. art. 1, § 3. "[The critical inquiry on
review of the sufficiency of the evidence to support a criminal conviction must be
. . . to determine whether the record evidence could reasonably support a finding
of guilt beyond a reasonable doubt." Jackson v. Virqinia, 443 U.S. 307, 318, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979). "[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt." Jackson, 443 U.S. at 319(emphasis in original).
"A claim of insufficiency admits the truth of the State's evidence and all
inferences that reasonably can be drawn therefrom." State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992). "In determining the sufficiency of the
evidence, circumstantial evidence is not to be considered any less reliable than
direct evidence." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99(1980).
"Deference must be given to the trier of fact who resolves conflicting testimony
and evaluates the credibility of witnesses and persuasiveness of material
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No. 77354-2-1/5
evidence." State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306
(1989).
The evidence herein plainly shows that Navarro committed the crime of
extortion with sexual motivation. Navarro acted with the expressed purpose of
convincing children to send him sexually explicit photographs and, eventually, to
engage with him in sexual contact. The counts of extortion pertained to two of
these children, J.B. and K.P., who Navarro targeted.
Navarro repeatedly communicated with J.B. offering to perform oral sexual
acts. When J.B. declined these offers and attempted to cease further
communications, he was met with threats of arrest or violence. Later, Navarro
demanded from J.B. a nude photograph of J.B. and an in-person meeting for
overtly sexual purposes.1 Even after J.B. obliged Navarro's request for the
explicit photograph, his refusal to meet Navarro in person was met With the threat
that Navarro's father would "hunt[him] down."
Meanwhile, Navarro was also communicating with K.P., employing the
ruse of two different feminine aliases. Navarro sent to K.P. various pornographic
images and, as with J.B., requested that K.P. send him a sexually explicit
photograph of K.P. When K.P. refused, Navarro threatened to burn down his
house. Ultimately, K.P. obliged the request, hoping that this would placate
Navarro. However, Navarro was not satisfied, and subsequently threatened to
publicly post the explicit photograph unless K.P. agreed to meet with him
personally. Navarro also threatened K.P. using another alias, drove to K.P.'s
1 Navarro phrased the proposed activity as "playing around" with J.B.'s person.
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No. 77354-2-1/6
house, and communicated, via text message, to the effect that he was watching
K.P.'s movements.
A rational trier of fact could conclude that Navarro committed these acts of
extortion in the pursuit of his own sexual gratification. Navarro's conversations
with these children were sexually explicit in nature and made in the furtherance
of sexual goals. In addition, Navarro sought to attain said goals through
intimidation and threatened violence. Viewing the evidence in the light most
favorable to the State, as we must, there is no possibility that the outcome of the
proceeding would have been any different were the error complained of not
made. Navarro cannot show prejudice.
Ill
Navarro submits a statement of additional grounds for review. None of the
arguments raised therein merit appellate relief.
Navarro first contends that the trial court's imposition of an exceptional
sentence based on sexual motivation was improper. This argument relies on the
unsupported assertion that extortion is a crime "inherently sexual" in nature and,
thus, that sexual motivation cannot be an aggravating factor supporting an
exceptional sentence. RCW 9A.56.110 defines extortion as "knowingly to obtain
or attempt to obtain by threat property or services of the owner, and specifically
includes sexual favors." The mere inclusion of sexual favors in the category of
"services" does not render extortion an inherently sexual offense because
extortion may also occur in the absence of sexual motivation—i.e., blackmailing
someone for money. Navarro's claim fails.
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No. 77354-2-1/7
Navarro's second argument is that the trial court's failure to grant his
motion for a continuance was an abuse of discretion. For the reasons discussed
above, this argument lacks merit.
Finally, Navarro avers that the Department of Corrections unlawfully
altered his final judgment and sentence in exceedance of its authority. This is
based only upon the court's adjustment of his exceptional sentence to run
concurrently with his base sentence. He ignores the trial court's note that this
modification was made pursuant to our mandate on the last remand of this case
wherein a 114-month term of confinement was imposed. With this in mind, there
is no basis to contend that his sentence was unlawfully altered.
Thus, none of the claims of error raised in Navarro's statement of
additional grounds entitle him to appellate relief.
Affirmed.
We concur:
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