Filed 7/27/26 P. v. Aguayo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E087183
v. (Super.Ct.No. RIF2402334)
JESUS IGNACIO AGUAYO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos,
Judge. Affirmed.
Law Offices of David R. Greifinger, and David R. Greifinger, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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I.
INTRODUCTION
Following a jury trial, defendant and appellant Jesus Ignacio Aguayo was
convicted of carjacking (Pen. Code,1 § 215, subd. (a)), and misdemeanor theft (§ 488). In
a bifurcated proceeding, defendant admitted that he had suffered two prior strike
convictions (§§ 667, subd. (c) & (e)(2)(A), 1170.12, subd. (c)(2)), and the trial court
found true the aggravating factor that defendant had served a prior prison term
(Cal. Rules of Court, rule 4.421(b)(3)). After the trial court struck one of defendant’s two
prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497,
the court sentenced defendant to 10 years in state prison for the carjacking conviction and
180 days in county jail for the misdemeanor theft conviction, to run concurrently with the
10-year sentence. The court awarded defendant 471 days credit for actual days served
and 70 days of conduct credits, for a total of 541 days credit for time served.
Defendant appeals from the judgment. Counsel has filed a brief under the
authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California
(1967) 386 U.S. 738 (Anders), requesting this court to conduct an independent review of
the record. In addition, defendant has had an opportunity to file a supplemental brief
with this court and has not done so. Based on our independent review of the record and
finding no arguable errors that would result in a disposition more favorable to defendant,
we will affirm the judgment.
1 Unless otherwise stated, all future statutory references are to the Penal Code.
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II.
FACTUAL BACKGROUND
In October 2023, Octavia Malone was living out of her car in Moreno Valley and
getting her food primarily from the Salvation Army. She kept her belongings in the car.
In the morning on October 20, 2023, Malone went to the Salvation Army in
Moreno Valley to get a hot meal. She had parked her car about 50 feet away. As she
walked toward the food line, she saw defendant passed out, lying on the ground. Malone
walked up to defendant, whom she had seen around town a couple of times, to see if he
was okay.
Malone coaxed defendant to walk with her to the Salvation Army to get something
to eat. At first, defendant was “kind of out of it” then about five minutes later became
“really combative and started yelling” while in line. Defendant was yelling that he was
missing several items, including a bike, a tablet, and a cell phone, and left the line before
obtaining any food. Malone followed defendant toward her car to see if he was okay.
When she approached her vehicle, Malone noticed that her purse and backpack, which
had been sitting visible on the passenger seat, were missing. Malone suspected that
defendant had taken her items and started searching for him in her vehicle.
About 10 minutes later, Malone found defendant, his girlfriend, and Joshua Zitter
outside a restaurant. Malone parked her car in the middle of the street, put it in park, but
did not turn off the ignition, leaving the door open. Malone noticed defendant and his
girlfriend dumping the contents of the purse and backpack on the ground. Malone was
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upset and yelling. She approached defendant and asked him why he had taken her
possessions. Defendant was agitated and said from about 15 to 20 feet away, “ ‘Well,
I’m going to take your car next, bitch.’ ”
Defendant then walked rapidly towards Malone, who was initially standing at the
passenger side of her car. As defendant walked toward Malone, she grabbed his arm
when she was near the hood of the car to try to prevent him from taking her vehicle.
Defendant jerked away from Malone, ran around the hood to the driver’s side of the car,
and got in. Malone reached into the car through the driver’s side door and tried to turn
the engine off and take the key out of the ignition. Defendant pushed Malone away, then
punched her in the nose and forehead three or four times. He then got into the car and
placed it in reverse while Malone hung onto the keys and steering wheel. After defendant
pushed Malone away one final time and she fell on her back, defendant drove away in
Malone’s vehicle. Malone called 911 and described the incident to officers at the scene
of the crime soon after it occurred.
Malone testified at the preliminary hearing and on cross-examination at trial that
she had known defendant for a few months. She also testified that she did not have
physical contact with defendant during the incident. Malone denied ever having an
intimate relationship with defendant when squatting in a house in Riverside. Malone was
convicted of second degree burglary in 2018 and of second degree robbery in 2017.
Zitter testified that he had known Malone as a friend for three years and that they
belonged to the same group of friends and hung out in the same area. Zitter recognized
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defendant as part of the group. On the day of the incident, defendant appeared at the
back of the restaurant with his girlfriend. Defendant and his girlfriend had two
backpacks, which they went through as if they had stolen them from somebody.
Defendant and his girlfriend dumped the contents of the backpacks on the ground and
kept some of it. They smashed the items they did not keep on the ground and threw some
in a trashcan. Malone showed up a few minutes later, parked her car, and yelled at
defendant and his girlfriend to return her stuff from about five feet away. The driver’s
side door of the vehicle was open. Defendant stopped rummaging through the backpacks
and charged at Malone with a two-by-four about two feet long, that he had picked up
from alongside a dumpster. Defendant got Malone away from the car and jumped in the
driver’s seat. Defendant then put the car in reverse while Malone was at the passenger
side of the car. Malone ran around the hood of the car to the driver’s side to try to
prevent defendant from driving away. As defendant backed up, Malone held onto the
interior of the window area of the driver’s side door. Malone tugged at defendant’s shirt
and told him to stop. The struggle lasted a couple of seconds. Defendant put the car into
drive and drove off as Malone held on, being dragged alongside the car as she held onto
the window frame with her left hand. Malone continued to try to pull defendant out of
the car with her right hand. Malone was dragged about five feet before she let go. Zitter
did not recall any punching during the incident.
The defense attempted to discredit Zitter’s testimony at trial with the use of his
prior inconsistent statements. At the preliminary hearing, Zitter testified that Malone and
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he were in the parking lot and that defendant joined them. He also testified that Malone,
and not defendant, had the two-by-four. He stated that Malone had come to the
restaurant parking lot, backed her car in, left her door open and hung out with him for
30 minutes. He further testified that at the time of the incident, he did not know
defendant’s name, had just seen him around, and that defendant came out from nowhere
from the back of the restaurant and got in the car. Zitter also testified at the preliminary
hearing that when Malone showed up at the restaurant, defendant was nowhere to be
found and that he did not recall seeing any backpacks. Zitter changed his story at the
preliminary hearing after the prosecution handed him a summary of Riverside County
Sheriff Sergeant Christopher Loucks’ written report.
During a videotaped interview with Sergeant Loucks about 30 to 45 minutes later
at the scene of the incident, Zitter stated that defendant showed up at the back of the
restaurant where his girlfriend was waiting for him. Defendant had two backpacks,
which he dumped out. He kept some of the contents and smashed the rest. Malone
pulled up in her car and yelled at him to give back her belongings. Defendant then
picked up a two-by-four, and chased Malone when she got out of the driver’s side of the
car. Defendant jumped in the car and backed up while Malone held onto the car, being
dragged across the parking lot. Just prior to the interview, Sergeant Vasquez had spoken
to Malone. Zitter was present as Sergeant Vasquez interviewed Malone. Sergeant
Vasquez summarized everything Malone had said in front of Malone and Zitter.
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During cross-examination, a videotape refreshed Zitter’s recollection that he was
sitting next to Malone the entire time as she spoke to Sergeant Loucks and heard the
summary of her statement. Zitter was convicted of felony witness intimidation in 2009
and first degree burglary in 2016 and 2024.
Sergeant Loucks responded to the carjacking call at around 12:18 p.m. and drove
to the restaurant. Riverside County Sergeant Vasquez had arrived just prior to Sergeant
Loucks. The restaurant was about 1,700 feet from the Salvation Army. Sergeant Loucks
made contact with Malone and Zitter, and photographed Malone, who was upset and
crying, and recorded an interview. Malone informed Sergeant Loucks that she was
hanging on the front of the car when defendant backed it up and that she lost her grip and
fell. Sergeant Loucks noticed black marks on Malone’s forearm, abrasions on her left
arm, and abrasions on the left side of her jawline. The abrasions on Malone’s left arm
were consistent with striking the asphalt. Sergeant Loucks thereafter broadcasted
information about Malone’s car to deputies in the area, but the vehicle was not located.
On cross-examination, Sergeant Loucks testified that Malone never told him that
she had been punched in the face by defendant or that she had been pushed to the ground
or that she had grabbed defendant or that she was tussling with defendant. Sergeant
Loucks acknowledged that the blemishes on Malone and a bump on her chin were
mentioned by Malone and Sergeant Loucks for the first time at trial and not at the
preliminary hearing. He also admitted that Malone stated she did not recall seeing
defendant with a two by four piece of wood at the time he interviewed her.
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On October 21, 2023, at about 11:34 p.m., officers located Malone’s car in an
assigned parking stall at an apartment complex in Moreno Valley, between a mile and a
half and two miles from the restaurant. The car appeared abandoned, with the windows
broken out and the battery removed. The locking mechanism on the car door was
damaged. Officers found nothing of evidentiary value inside the car.
III.
DISCUSSION
After defendant appealed, this court appointed counsel to represent him. Upon
examination of the record, counsel has filed a brief under the authority of Wende, supra,
25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, a
summary of the facts and potential arguable issues of whether the trial court had a sua
sponte duty to instruct the jury on attempted carjacking despite defendant’s counsel’s
request that the instruction not be given, whether there was sufficient evidence of force or
fear during the carjacking, and whether the court erred in admitting defendant’s 2002
burglary conviction for impeachment if he testified.
We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so.
An appellate court conducts a review of the entire record to determine whether the
record reveals any issues which, if resolved favorably to defendant, would result in
reversal or modification of the judgment. (Wende, supra, 25 Cal.3d at pp. 441-442;
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People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders, supra, 386 U.S. at p. 744; see
People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the entire record for potential error and find no arguable error
that would result in a disposition more favorable to defendant.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
FIELDS
J.
MENETREZ
J.
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