P. v. Aguilar
Filed 12/2/13 P. v. Aguilar CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
EDGAR AGUILAR,
Defendant
and Appellant.
B240268
(Los Angeles County
Super. Ct. No. LA059320)
APPEAL
from a judgment of the Superior Court of
County, Bob S. Bowers, Jr., Judge. Affirmed.
Catherine
White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr.,
and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Edgar Aguilar and his codefendant
Alvaro Aguirre were charged with 10 counts of
subd. (a), 664 (counts 1-8, 13, 14)),
2800.2 (count 9 as to Aguilar and count 10 as to Aguirre)), and one count of
possession of a firearm by a felon (§ 12021, subd. (a)(1) (count 11 as to
Aguilar and count 12 as to Aguirre)). The
information included the following allegations:
(1) the attempted murders were willful, deliberate, and premeditated (§
664, subds. (e), (f)); (2) a principal personally used and discharged a firearm
during the commission of the attempted murders (§ 12022.53, subds. (b),
(c), (e)(1)); (3) all of the crimes were committed with the intent to promote
criminal conduct by gang members (§ 186.22, subds. (b)(1)(A), (b)(4)); and
(4) defendant had served prior prison terms (§ 667.5, subd. (b)).
The
jury acquitted Aguilar of the attempted murder allegations in counts 1 and 2, but
convicted him of assault with a semiautomatic firearm on a peace officer as a
lesser included offense. (§ 245, subd.
(d)(2).) The jury failed to reach a
verdict on counts 3 and 4. The jury
convicted Aguilar as charged on counts 5 through 14.
After
receiving a determinate sentence of 125 years plus an indeterminate term of 90
years to life,
name="_ftnref2" title="">[2] Aguilar filed the present appeal from the
judgment. He contends (1) the trial
court conducted an inadequate posttrial hearing
on a juror misconduct allegation, and (2) the evidence at trial was
insufficient to sustain the gang enhancement allegations. Finding no error, we affirm.
BACKGROUND
I. The May 24, 2008 Incident
On
May 24, 2008, Los Angeles Police Department Officers Dontae Phillips and
Kristina Ramirez were patrolling in North Hollywood when they spotted a Nissan
Altima with paper license plates. The
officers had been told to be on the lookout for stolen cars with paper license
plates. As the officers shined a
spotlight on the Altima, which was double parked, a man who was leaning into
the front passenger window (later identified as defendant Aguilar) dove into
the Altima, which “took off right away.â€
The
officers pursued the Altima with their lights and siren on. Aguilar pointed a gun through the Altima’s sunroof
and fired several shots at the patrol car. The shots caused the patrol car to back off, which
allowed the driver of the Altima (later identified as defendant Aguirre) to stop
the car. When Aguilar opened the front
passenger door, Ramirez stopped the patrol car and Phillips got out. Aguilar fired several shots at Phillips, who
returned fire. Aguilar and Phillips got
back into their respective vehicles and the pursuit resumed.
The
Altima eventually came to a halt after crashing into a gate. Aguirre jumped out and ran away. While the officers were following Aguirre in
their patrol car, Aguilar, who was behind the patrol car, fired several shots at
the officers. At least one round hit the
patrol car.
As
Aguilar fired at the officers and kept them inside the patrol car, Aguirre, who
had dropped to the ground in front of the patrol car, was able to get up and
run away. Aguilar also ran away but was
confronted by a second patrol car, which arrived as backup. Aguilar assumed a shooting stance and fired
several shots at the second patrol car, which was heading straight at him. An officer fired several shots at Aguilar from
the second patrol car. Aguilar ran out
of ammunition, threw the gun to the ground, and surrendered.
Aguirre
was apprehended and treated for a gunshot wound to the leg. Aguilar was treated for scrapes and abrasions.
During
the booking process, Aguirre said something to Aguilar in Spanish. Aguilar replied, “I did it all. I was the shooter.†Aguilar tested positive for gunshot residue;
Aguirre tested negative.
II. The Prosecution’s Gang Expert
The
prosecution’s gang expert, Daniel Fournier, testified that Aguilar and Aguirre
were active members of the Vineland Boyz, a criminal street gang. Fournier explained that the Vineland Boyz have
a particular hatred for the Los Angeles and Burbank Police Departments that began
in 2003, when a Vineland Boyz member (Ramon Aranda or “Munchieâ€) and a Burbank police
officer (Officer Pavelka) were killed in a shootout. Officer Pavelka’s death led to the creation of
a task force that sought to put the Vineland Boyz “out of business.†The task force arrested a hundred Vineland
Boyz members and obtained convictions against 40 of the gang’s “[o]riginal
gangsters†or “hardcore†members on federal racketeering charges. The arrests and convictions “interrupted†the
gang’s “drug trade†and “fractionalized†its membership. As a result, the Vineland Boyz harbor an “extreme
hatred†for the Los Angeles and Burbank Police Departments, which is expressed
in their graffiti and tattoos.
In
Fournier’s opinion, the most “hardcore†method to earn respect in the gang culture
is to “go after a police officer.†When
a gang displays a “willingness to shoot it out with the police,†it earns respect
from other gangs and within the prison system.
Fournier
was presented with a hypothetical that mirrored the facts of this case. He testified that in his opinion, the driver
and passenger were gang members who were working in concert during the entire
incident to benefit their gang. Shooting
at police officers benefits a gang by creating fear and intimidation within the
community, discouraging witnesses from reporting crimes or cooperating with the
police, and enhancing the gang’s reputation within the prison system. For a gangster, the ultimate crime is killing
a police officer.
III. The Defense Evidence
Both defendants testified at trial. Aguirre admitted that he was the driver and
Aguilar admitted that he was the shooter in the May 24, 2008 incident.
mutual defense theory was that defendants were trying to evade arrest but were
not trying to injure or kill anyone.
Aguirre testified as follows: He belongs to the Vineland Boyz and was on
parole when this incident occurred. He was
driving the Altima in an attempt to get away from the police because he did not
want to be sent to prison for being in a stolen car. He heard gunshots during the pursuit but did
not know who was shooting. He did not
fire any shots during the incident.
Aguilar
testified as follows: He belongs to the
Vineland Boyz and has known Aguirre for 10 years. When this incident occurred, Aguilar was on
parole and had a gun in his possession. During
the pursuit, Aguilar “stuck [his] hand†“through the sunroof†and “shot†at the
police. Aguilar was only trying to “scareâ€
the officers so that he and Aguirre could “evade the police and get away.†Initially, the plan worked. When the patrol car backed off, Aguirre
stopped the Altima and Aguilar opened the passenger door in order to get out
and run. Before Aguilar could run away, the
patrol car “caught up†and “started shooting.†Aguilar “stood up and fired another like four
shots,†because “if someone is firing a gun at you, you’ve got to make them
stop. I was trying to make them stop a
little bit.â€
When
the pursuit resumed, Aguilar “stood up†in the moving car and fired a few more rounds.
Aguilar did not fire “with the intention
of hitting the police vehicle.†He was only
trying to get the police vehicle “to back up.â€
After
Aguirre crashed the Altima, Aguilar jumped out and ran to some parked trucks,
but soon realized that it was not “a good hiding place.†Aguilar stood up and began firing at Phillips
and his partner in order “[t]o make them stop.†Aguilar was running away when he saw “another
police car.†Aguilar fired several more
shots to get “them to stop.â€
On
cross-examination, Aguilar admitted that he had initiated the shooting. Aguilar testified that he was aware of the 2003
shooting deaths of Officer Pavelka and a “Vineland boy.†He was also aware that if fired upon, the
police are trained to fire back and not run away.
IV. The Juror Misconduct Hearing
The trial
court received the jury’s verdict and dismissed the jury on February 28, 2011. Two weeks later, the trial court received a
letter from juror number 2, the foreperson, dated March 16, 2011.
The
trial court held a hearing at which it informed the prosecution and defense counsel
of juror number 2’s letter. The trial
court stated in relevant part: “This letter,
in the court’s opinion, kind of goes all over the place and it makes a couple
of suggestions that trouble me in a sense that at one point she says basically
something to the effect that I [the trial judge] had to go on vacation and
another thing she basically says I was rushing them. I have been on the bench a long time. One thing I never say to a jury is I’m going
on vacation. I say the court is
dark. I may in fact encourage [the]
lawyers to move along at a nice pace, but I would never say anything in front
of a jury that indicates speed is at issue.
You made me think before I heard whatever you had to say. It seemed to me she was talking to someone in
the audience. How could she come up with
that? That was kind of troubling. The salutation at the end is totally
different than the letter. And so I
think at this point . . . we owe it to ourselves to get
clarification.â€
The
trial court invited defense counsel to obtain a declaration from juror number 2,
which the court would examine to determine if it raised a possible claim of juror
misconduct. Defense counsel submitted juror
number 2’s declaration dated September 15, 2011, which included the
following statement concerning the alleged use of a cell phone during
deliberations: “Finally, despite the
court’s order to refrain from using technology or investigating the case on our
own during deliberations with the other jurors there was argument concerning
the definition of malice. I explained to
them what I believed malice to mean. One
of the jurors used her smart phone to find a dictionary definition of malice,
read it aloud, and showed it to the jurors.
As foreperson, I immediately reminded her that we were not to use
technology in any way to enhance our understanding of the case and certainly
were not allowed to investigate or research in any way on our own.â€
After
reviewing juror number 2’s declaration, the trial court set a December 8, 2011 hearing
at which the jurors were requested to appear. The eight jurors who appeared at the December
8 hearing, including juror number 2 and the juror who allegedly used the cell
phone, were questioned individually by the trial court. In response to the trial court’s questions, seven
of the eight jurors (juror numbers 11, 5, 1, 7, 10, 6, and 4) testified that (1)
they did not see anyone using a cell phone during deliberations, and (2) no outside
information was received via cell phone during deliberations.
The
trial court questioned juror number 2 last.
In response to the trial court’s greeting, “How are you?,†she replied, “I’m
a little bit upset.†She testified that “lateâ€
in the deliberations, a female juror with curly hair—who was present at the
December 8 hearing—had used her cell phone under the table to look up the word
malice. The female juror “said look, it’s
right here and read the definition of malice off of her online dictionary.†“[S]he picked it up and showed it to
everybody, and then I yelled at her and she put it away.â€
At
the end of the hearing, the trial court found that “no irregularities†had
occurred with regard to a cell phone. In
explaining its finding, the trial court referred to juror number 2’s March 16,
2011 letter, which indicated that she was unhappy with the verdict but did not
refer to any specific statements or words.
The trial court stated in relevant part:
“[Juror number 2] who just left the courtroom wrote a document dated
March 16, 2011. In paragraph 2 of that
document, basically a partial quote goes, ‘It was clear from the first moment
that some jurors believed they had the obligation to rubber stamp the
prosecution’s charges.’ Same paragraph, ‘I
believe this influenced some jurors into thinking that a rush to judgment was
preferred by the court.’ No specific
statements, no specific words were ever quoted in that document. The court has indicated to the attorneys on a
number of occasions now that it has read and re-read this document. The court has held this hearing because the
court believes there was one outstanding issue that had to be addressed, and we
have done that at this point. The court
finds that the other statements or allegations, and I won’t call them
allegations, other statements in this document are not critical. The court believes that this juror clearly,
for whatever reasons, was not pleased with the end result in this matter. And I think it would, at least at the
conclusion, I believe it’s reasonable if one just reads the document
itself. Again, for those reasons and the
testimony at this particular hearing, the court would find at this point that
no irregularities occurred in the deliberations with respect to a cell phone. That will be the court’s ruling.â€
V. The New Trial Motion
On
January 9, 2012, Aguilar moved for a new trial based on: (1) juror number 2’s declaration concerning
the alleged use of a cell phone (§ 1181, subds. 2, 3); and (2) insufficient
evidence to sustain the gang enhancement
allegations. After denying the new trial
motion, the trial court imposed sentence.
This timely appeal followed.
Evidence Supports the Trial Court’s Finding That No Irregularity Occurred With
Regard to a Cell Phone
Defendant
contends the December 8, 2011 hearing was inadequate to determine whether a cell
phone was used during deliberations to look up the definition of malice. He
contends the questions posed to the jurors—whether “any information came to the
jury via cell phone†and whether the jurors saw anyone using a cell phone
during deliberations—were too narrowly focused. He contends that a proper inquiry would have
included the following additional questions:
(1) whether each juror had personally used a cell phone during
deliberations; and (2) whether “there was disagreement over the definition of
malice and whether or not there was a discussion about malice.’†We reject defendant’s contention and conclude
the hearing was adequate to determine whether a cell phone was used during
deliberations to look up the definition of malice.
On
appeal, the trial court’s credibility findings will be affirmed if they are
supported by substantial evidence. (People
v. Majors (1998) 18 Cal.4th 385, 417.)
In this case, there were solid grounds to support the trial court’s
determination that juror number 2, who was “not happy†with the verdict, was
not credible in her allegation regarding the supposed cell phone incident.
As
the trial court pointed out, juror number 2’s credibility was undermined by her
March 16, 2011 letter. At the initial
hearing regarding the March 16 letter, the trial judge stated it was troubled
by the letter’s “suggestions†that the judge “had to go on vacation†and “was
rushing them.†The trial judge expressly
denied both “suggestions,†stating, “I have been on the bench a long time. One thing I never say to a jury is I’m going
on vacation. I say the court is
dark. I may in fact encourage [the]
lawyers to move along at a nice pace, but I would never say anything in front
of a jury that indicates speed is at issue.â€
At
the December 8 hearing, the trial court conducted a proper inquiry to determine
whether any outside information was obtained via cell phone. The failure to ask whether each juror had personally
used a cell phone during deliberations was not improper. An
affirmative response to that question would have simply led to the question
that was posed to each juror: Was
outside information received via cell phone during deliberations? The purpose of the December 8 hearing was not
to determine whether someone had used a cell phone, but whether the use of a
cell phone had resulted in the receipt of outside information. The court’s inquiry satisfied that purpose. Asking whether there was a dispute concerning
the word malice would not have assisted defendant because, as the trial court
correctly pointed out, the jury is entitled to have such a disagreement.
The
bottom line is that at the December 8 hearing, seven jurors denied under oath that
any outside information was obtained via cell phone. Because the trial court believed their
testimony, the record contains substantial evidence to support the finding that
no irregularity occurred with regard to the use of a cell phone. Accordingly, no further inquiry concerning juror
number 2’s declaration was required and the motion for new trial was properly
denied.
II. Substantial Evidence Supported the Gang
Enhancement Allegations
Defendant contends that Fournier’s expert testimony
was insufficient to support the specific intent element of the gang enhancement
statute. To satisfy the specific intent
element, the statute requires a finding that the defendant committed the crime “with
the specific intent to promote, further, or assist in any criminal conduct by
gang members.†(§ 186.22, subd. (b)(1).)
Defendant’s
contention that the specific intent element was not satisfied in this case is
based on In re Frank S. (2006) 141 Cal.App.4th
1192 (Frank S.) and
(Ramon). Both cases are readily distinguishable.
In
one count of carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)) and
found the gang enhancement allegation to be true (§ 186.22, subd.
(b)(1)). The appellate court reversed the
true finding on the gang enhancement, finding the evidence insufficient to show
the minor was carrying the knife “with the specific intent to promote, further,
or assist in any criminal conduct by gang members.†(§ 186.22, subd. (b)(1).) The appellate court explained: “The prosecution did
not present any evidence that the minor was in gang territory, had gang members
with him, or had any reason to expect to use the knife in a gang-related
offense. In fact, the only other
evidence was the minor’s statement to the arresting officer that he had been
jumped two days prior and needed the knife for protection. To allow the expert to state the minor’s
specific intent for the knife without any other substantial evidence opens the
door for prosecutors to enhance many felonies as gang-related and extends the
purpose of the statute beyond what the Legislature intended.†(141 Cal.App.4th at p. 1199.)
In
of receiving a stolen vehicle, possession of a firearm by a felon, carrying a
loaded firearm while a member of a criminal street gang, and carrying a loaded
firearm for which he was not the registered owner. The jury also found the gang enhancement
allegations to be true. (§ 186.22,
subd. (b)(1).) On appeal, the appellate
court found the evidence insufficient to support the specific intent requirement
of the gang enhancement statute. The
appellate court rejected the People’s argument that the defendant’s presence in
a stolen vehicle, with another gang member, while in gang territory, was
sufficient to establish that the crime was committed with specific intent to
promote, further, or assist criminal conduct by gang members.
In
both Frank S. and
weapon, but did not use the weapon to commit a crime. In this case, however, Aguilar was carrying a
weapon that he fired multiple times to evade the police during the stolen vehicle
pursuit and later to distract the police to assist fellow gang member Aguirre,
who was on the ground in front of the patrol car, to get up and run away. We find the evidence in this case was
sufficient to establish the specific intent requirement of the gang enhancement
statute.
DISPOSITION
The judgment is affirmed.
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J.
MANELLA, J.
name="_ftn1" title="">[1] All further undesignated statutory references are to the
Penal Code.
Aguirre
is not a party to this appeal.
name="_ftn2" title="">[2] On the six attempted murder counts (5-8, 13 & 14),
Aguilar received six consecutive terms of 15 years to life, plus six
consecutive 20-year terms for the personal gun use enhancement. On count 9, Aguilar received a consecutive
two-year term for evading an officer, plus three years for the gang
enhancement. On counts 1, 2, and 11,
sentence was imposed but stayed pursuant to section 654.
