P. v. Aguayo
Filed 7/29/13 P. v. Aguayo CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JAIME AGUAYO,
Defendant and Appellant.
B243584
(Los Angeles
County
Super. Ct.
No. BA387239)
APPEAL from a judgment of the Superior
Court of
County.
Leslie A. Swain, Judge.
Affirmed.
Jaime
Aguayo, in pro. per.; and Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
_______________________________
Jaime Aguayo appeals from a judgment
of conviction after a jury trial of one count of
(including a special allegation of using a deadly or dangerous weapon), two
counts of assault, one count of criminal threats, two counts of possession of a
firearm by a felon, and one count of possession of ammunition by a felon. Aguayo also pled nolo contendere to two counts
of disobeying a domestic relations court order.
The jury was unable to reach a verdict on three counts. Appellant’s appointed counsel filed a brief
pursuant to People v. Kelly (2006) 40
Cal.4th 106, 109-110; People v. Wende
(1979) 25 Cal.3d 436, 441-442. After
examination of the record, we affirm.
STATEMENT OF FACTS
At the time
of trial in 2012, Aguayo and his ex-girlfriend, Ivon D., had known each other
for approximately 15 years. In March or
April 2011,
title="">[1]
Aguayo moved in with Ivon and her mother, sister and daughter.
two-bedroom apartment.
The
information charged Aguayo with 12 counts representing several incidents
on various dates. The facts related to those counts resulting
in conviction are summarized below.
I. Count
2 – Inflicting Injury on Cohabitant
on or about July 1, 2011
On July 1, 2011, at approximately 9 a.m., Ivon was at home watching television
with her two-year-old daughter when Aguayo woke up and wanted to argue with
her. Ivon asked if she could spend some
time with her daughter, Aguayo responded in the negative and dragged Ivon by
her hair into their bedroom. Aguayo
closed the door, threw Ivon on the bed and whipped her 9 or 10 times with a
belt, leaving bruises and welts on her arm, shoulders, a part of her back, the
back of her neck and legs.
The
prosecution introduced into evidence several photographs of Ivon taken on July 4, 2011 and photographs taken at
the police station on July 12, 2011,
showing her injuries from the July 1,
2011 incident.
name="_ftnref3" title="">[3]
The defense
presented testimony from Cecilia Valenzuela who testified that sometime during
the last week of June or first week of July 2011 she got into a physical
altercation with Ivon over rumors Ivon was telling about Valenzuela. Valenzuela described it as a “girl fight,â€
“pulling hair, scratching, rolling on the ground†that lasted approximately 10
to 15 minutes until they were pulled apart by Aguayo and Valenzuela’s
boyfriend. Valenzuela did not know if
Ivon was injured in the fight.
Aguayo
testified that he was present for the fight between Ivon and Valenzuela and
that Ivon was hit or scratched by Valenzuela.
Aguayo had no recollection of hitting Ivon with a belt on July 1, 2011.
Count 3 – Assault by Means Likely to Produce Great Bodily Injury and Count 4 –
Criminal Threats on or about July 5,
2011
On July 5, 2011, at approximately 9 p.m., Aguayo and Ivon began arguing, with Aguayo asking
Ivon if she was cheating on him or planning to leave him. They went into their bedroom and Aguayo told
Ivon that he would kill her if she lied to him or cheated on him. Aguayo slapped Ivon several times, threw her
on the bed and choked her until she lost consciousness. When she awoke, Aguayo told her he could take
justice into his own hands if she lied to him.
Aguayo testified that he did not
remember an argument with Ivon on July
5, 2011 and denied slapping or choking Ivon.
Counts 7 (shotgun) and 8 (rifles)
Count 9 – Possession of Ammunition by a Felon, and Count 12 – Assault by Means
Likely to Produce Great Bodily Injury on or about July 7, 2011
In the apartment were two or three
handguns and two rifles owned by Ivon’s father, as well as a shotgun and
ammunition.
title="">[6] When Aguayo moved in, he offered to buy a
safe to keep the guns away from children.
Aguayo purchased a gun safe and put it in the bedroom he shared with
Ivon and Ivon gave him the guns to store.
On July 6, 2011, Ivon took the handguns out of the gun safe
and gave them to her sister to hide.
because they were too big to hide.
Ivon testified that on July 7, 2011, at approximately noon, Aguayo noticed the guns were missing and was very angry. Aguayo told Ivon to “get me the guns right
now†and she denied knowing what he was talking about. During the argument, Ivon and Aguayo went
outside and Aguayo slapped Ivon a few times before going back inside.
Ivon’s father happened to be
driving by the apartment and saw Aguayo grab Ivon and throw her into the gate
at the entrance to the building. Ivon’s
father parked his car and went to the apartment, finding the door open a few inches and saw Ivon shaking inside. Ivon told her father not to come in, saying
she didn’t want him to get hurt. Ivon’s
father stood by the front door and called the police.
Approximately five minutes later,
police arrived. The police asked for,
and Aguayo provided, the combination to the safe and the police recovered two
rifles, a shotgun and ammunition from the safe.
Aguayo told officers that the safe was his, some of the guns belonged to
Ivon’s father,
title="">[8]
Aguayo knew the guns were in the safe, he knew he was not allowed to possess
guns because of his status as a felon, the ammunition was his, and he knew he
was not supposed to have ammunition.
The officer saw that Ivon had a
chipped tooth and redness to her face.
The defense introduced evidence of a photograph of Ivon taken on July 7, 2011 showing acne scars on her
face, but the arresting officer testified that the photo also showed finger
marks on her face.
The parties stipulated that Aguayo
had previously been convicted of a felony.
Aguayo testified that all the guns
belonged to Ivon’s father. Aguayo
admitted he bought the gun safe, explaining he wanted to keep the guns away
from children, but said it was a gift to the family. He denied knowing on July 7, 2011 that the guns had been moved from the
safe and denied that they argued about the guns, instead stating that he and
Ivon argued about Ivon not taking care of the apartment and her baby.
Aguayo admitted to slapping and
pushing Ivon during the argument. Aguayo
testified that this was the first time he ever slapped Ivon, but that they had
had a couple of “push and shove†arguments.
Aguayo
denied telling police that he knew he was not supposed to possess guns and
ammunition because of his felon status or that the handgun was under the
couch. Aguayo also denied knowing that
he was not supposed to have guns as a convicted felon. He admitted knowing the combination to the
gun safe.
Count 10 –Disobeying a Domestic
Relations Court Order on or about July 8, 2011 and Count 11 – Disobeying a
Domestic Relations Court Order on or about July 13, 2011
The parties stipulated that on July
7, 2011 an emergency protective order was served on Aguayo and Aguayo violated
this order on July 8, 2011 and July 13, 2011, by contacting Ivon by email.
PROCEDURAL HISTORY
A December 15, 2011 information
charged Aguayo in counts 1 and 2 with inflicting injury on a cohabitant (Pen.
Code, § 273.5, subd. (a)) on or about June 1 to June 20, 2011 and on or
about July 1, 2011 respectively; in count 3 with assault by means likely to
produce great bodily injury (§ 245, subd. (a)(1)) on or about July 5, 2011; in
count 4 with criminal threats (§ 422) on or about July 5, 2011;
in counts 6 through 8 with possession of a firearm by a felon (§ 12021, subd.
(a)(1)) on or about July 7, 2011; in count 9 with possession of ammunition by a
felon (§ 12316, subd. (b)(1)) on or about July 7, 2011; and in counts 10 and 11
with disobeying a domestic relations court order (§ 273.6, subd. (a)) on
or about July 8, 2011 and on or about July 13, 2011, respectively. The information further alleged that Aguayo
personally used a deadly or dangerous weapon in the commission of count 2 (§
12022, subd. (b)(1)) and had personally used a firearm in the commission of
counts 3 and 4 (§ 12022.5, subd. (a)).
The information also alleged that Aguayo had previously been convicted
of a strike offense (§ 667, subds. (b)-(i), & 1170.12 subds. (a)-(d))
and a serious felony (§ 667, subd. (a)(1)).
Appellant pled not guilty and
denied these allegations.
A July 6, 2012 amended information
charged Aguayo in count 12 with an additional count of assault by means likely
to produce great bodily injury (§ 245, subd. (a)(1)) on or about July 7, 2011,
and in count 13 with an additional count of possession of a firearm by a felon
(§ 12021, subd. (a)(1)) on or about July 5, 2011. The amended information further alleged that
Aguayo personally used a firearm in the commission of count 12 (§ 12022.5,
subd. (a)).
Appellant pled not guilty and
denied these new allegations.
At the close of the prosecution’s
case, Aguayo moved to dismiss pursuant to section 1118.1, and the trial court
denied the motion. Aguayo then withdrew
his plea of not guilty on counts 10 and 11 for disobeying a domestic relations
court order, and entered a plea of nolo contendere to those counts.
The jury found Aguayo guilty on
seven counts: count 2 for inflicting
injury to a cohabitant on or about July 1, 2011; count 3 for assault by means
likely to produce great bodily injury on or about July 5, 2011; count 4 for
criminal threats on or about July 5, 2011; count 7 for possession of a firearm
(shotgun) by a felon on or about July 7, 2011; count 8 for possession of
firearms (rifles) by a felon on or about July 7, 2011; count 9 for possession
of ammunition by a felon on or about July 7, 2011; and count 12 for assault by
means likely to produce great bodily injury on or about July 7, 2011. The jury also found to be true the special
allegation in count 2 that Aguayo personally used a dangerous or deadly
weapon. The jury deadlocked on three
counts and the court declared a mistrial on those counts: count 1 for
inflicting injury to a cohabitant on or about June 1, 2011 to June 20,
2011; count 6 for possession of a firearm (handgun) by a felon on or about
July 7, 2011; and count 13 for possession of a firearm (handgun) by a
felon on or about July 5, 2011. The jury
was also unable to reach a verdict on the special allegations in counts 3 and 4
that Aguayo personally used a firearm (a handgun) in the commission of those
counts.
Aguayo
waived his right to a jury trial on
his prior conviction. Aguayo later
stipulated to his prior strike conviction.
The court denied Aguayo’s Romero
motion to strike the prior strike conviction.
After
argument from counsel, the court sentenced Aguayo to a total aggregate term of
18 years and eight months in state prison.
Specifically, the court sentenced Aguayo to a middle term of three years
on count 2 (§ 273.5, subd. (a)), doubled pursuant to section 1170.12,
subdivisions (a) to (d), for a base term of six years with an additional
consecutive term of one year for the true finding that Aguayo personally used a
deadly or dangerous weapon (§ 12022, subd. (b)(1)), for a total of seven years
as the principal term.
On counts 3
and 12 (§ 245, subd. (a)(1)), the court sentenced Aguayo on each count to
one-third the middle term of three years doubled pursuant to the three strikes
law, for a total of two years on each count to run consecutively to the
sentence in count 2.
On count 4
(§ 422) and on count 7 (§ 12021, subd. (a)(1)), the court sentenced Aguayo on
each count to one-third the middle term of two years doubled pursuant to the
three strikes law, for a total of one year and four months on each count to run
consecutively to the sentence in count 2.
On count 8 (§ 12021, subd. (a)(1))
and on count 9 (§ 12316, subd. (b)(1)), the court sentenced Aguayo on each
count to one-third the middle term of two years doubled pursuant to the three
strikes law, for a total of one year and four months on each count to run
concurrently to the sentence in count 2.
On counts 10 and 11 (§ 273.6, subd.
(a)), the court sentenced Aguayo to one year each to run concurrently with all
other time.
On the prior prison term under
section 667, subdivision (a), the court sentenced Aguayo to an additional
consecutive term of five years.
Aguayo filed a timely
DISCUSSION
We
appointed counsel to represent
defendant on appeal. After examination
of the record, appointed counsel filed an opening brief raising no issues and
asking this court to independently review the record. (People
v. Wende, supra, 25 Cal.3d at p.
441.) On March 18, 2013, we sent letters
to Aguayo and appointed counsel, directing counsel to immediately forward the
appellate record to Aguayo and advising Aguayo that he had 30 days within which
to personally submit any contentions or
issues he wished us to consider.
Aguayo filed a handwritten letter
brief in the trial court on March 20, 2013 and, after a delay, it was
forwarded to this court. We granted
permission to file it late on June 26, 2013.
In his letter brief, Aguayo raises a number of points and arguments
which are without merit.
name="_ftnref13" title="">[13]
Aguayo argues that he did not know
that placing the firearms inside a safe would get him “into trouble†even
though he was no longer on parole or probation.
Whether defendant was aware that it was illegal for him to possess a
firearm is not a mistake of fact, but rather a mistake of law, which is not a
defense. (People v. Snyder (1982) 32 Cal.3d 590, 592-593.)
Aguayo also
contends that Ivon contacted him to meet on July 13, 2011 in violation of the
however, limits the potential scope of his appeal to “constitutional,
jurisdictional, or other grounds going to the legality of the proceedings†and
“[g]rounds that arose after entry of the plea and do not affect the plea’s
validity.†(Pen.Code, § 1237.5, subd.
(a); Cal. Rules of Court, rule 8.304(b)(4)(B).)
Aguayo also asserts that Ivon told
him at this July 13, 2011 meeting that she did not want to press charges, but
that a police officer threatened to take away her daughter unless she testified
against Aguayo. Nothing in the record
supports this assertion.
Aguayo also raises a number of
claims related to an ineffective assistance of counsel claim. “‘To establish ineffective assistance of
counsel, a [defendant] must demonstrate that (1) counsel’s representation was
deficient in falling below an objective standard of reasonableness under
prevailing professional norms, and
(2) counsel’s deficient representation subjected the [defendant] to prejudice,
i.e., there is a reasonable probability that, but for counsel’s failings, the
result would have been more favorable to the [defendant]. [Citations.]
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.â€
[Citation.]’ [Citation.]†(In re
Jones (1996) 13 Cal.4th 552, 561.)
Here, Aguayo contends that his
trial counsel failed to make a Romero
motion to strike a prior strike. In
fact, trial counsel made such a motion but it was denied.
Aguayo also contends that his trial
counsel failed to call a witness that would have “proved Ivon [D.] is a
criminal†and her testimony should not have been held “valid,†to investigate
Ivon D. whom Aguayo contends has an arrest record, and failed to develop
testimony showing that Ivon had stolen money and a car from Aguayo and
therefore had a motive to lie at trial.
Defendant’s factual assertions, however, are not part of the record
before this court, and therefore cannot be considered.
Accordingly, Aguayo’s ineffective
assistance of counsel claim fails. He
has not shown his counsel’s representation was deficient. Nor has he shown a reasonable probability
that any of the things his attorney “failed†to do would have resulted in a
more favorable outcome for him.
We have examined the entire record
and are satisfied that defendant’s appointed counsel has fully complied with
his responsibilities and that no arguable
issues exist. (People v. Kelly, supra,
40 Cal.4th at pp. 109-110; People v.
Wende, supra, 25 Cal.3d at p.
441.)
DISPOSITION
The
judgment is affirmed.
NOT TO BE
PUBLISHED.
CHANEY,
J.
We concur:
MALLANO,
P. J.
JOHNSON,
J.
but moved out. Ivon’s sister mostly
stayed over on weekends while she was in school but was home for the summer.
