Filed 7/29/13 P. v. Aguayo CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B243584
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA387239)
v.
JAIME AGUAYO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles 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 inflicting injury on a cohabitant (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 2011,1 Aguayo moved in with
Ivon and her mother, sister and daughter.2 Aguayo and Ivon shared a bedroom in the
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.
1 Aguayo testified that he moved in about May 2011.
2Ivon‟s father also lived with them for a short time, but moved out. Ivon‟s sister
mostly stayed over on weekends while she was in school but was home for the summer.
2
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.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,” “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.
II. 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.4
3 Aguayo was charged in count 1 with inflicting injury on a cohabitant related to an
incident in a park that occurred sometime between June 1 and June 20, 2011, but the jury
was unable to reach a verdict on this count.
4 The jury was unable to reach a verdict on the firearm enhancement to counts 3 and 4
or on count 13 charging possession of a handgun during this incident. Ivon had testified
that during this July 5, 2011 incident, Aguayo had a .22 caliber handgun (owned by her
father), which he at one point put in her mouth and at another point “cocked” and put a
bullet in the chamber. On cross-examination, Ivon expressed confusion about whether
the gun was placed in her mouth. Ivon‟s father testified to a telephone conversation with
Ivon on July 5 or 6, 2011 in which she told him that Aguayo had put a gun in her mouth.
Aguayo denied having a gun during the incident.
3
Aguayo testified that he did not remember an argument with Ivon on July 5, 2011
and denied slapping or choking Ivon.
III. Counts 7 (shotgun) and 8 (rifles)5 – Possession of a Firearm by a Felon,
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.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.7 Ivon did not take the rifles and shotgun 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
5 Count 8 of the information was amended by interlineation to read “rifles” plural.
6 Ivon‟s father testified that he owned the rifles and handguns, but not the shotgun and
was unsure about the ammunition.
7 Ivon‟s sister gave them to their mother to hide.
4
of the guns belonged to Ivon‟s father,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.9
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.
8 The testifying officer could not remember which guns Aguayo told him belonged to
Ivon‟s father.
9 The jury was unable to reach a verdict on the firearm enhancement to count 12 or on
count 6 charging possession of a handgun during this incident. Ivon had testified that
during the July 7, 2011 incident, she thought Aguayo had a .22 handgun in his pocket
because of the way he was moving his hand around but she did not actually see it. Ivon‟s
father testified that he did not see a handgun. After speaking to Ivon‟s father and Ivon,
the police asked defendant where the gun was and he responded under the couch in the
apartment. Police recovered a .22 caliber gun under the sofa in the living room.
5
IV. 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;10 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
10 At the December 2, 2011 preliminary hearing, the court found insufficient cause and
dismissed count 5, charging Aguayo with a felony under section 245, subdivision (a)(1)
(assault with a deadly weapon).
6
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.11
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 Romero12 motion to
strike the prior strike conviction.
11 The prosecution at sentencing moved to dismiss these allegations.
12 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
7
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 notice of appeal.
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
8
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.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 emergency protective order. Aguayo‟s no contest plea on count 11,
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.” [Citation.]‟ [Citation.]” (In re Jones (1996) 13
Cal.4th 552, 561.)
13 Because Aguayo directed his letter to the trial court, he also asked the trial court to
reconsider his sentence. We do not address this request on appeal.
9
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.
10