Filed 7/2/21 P. v. Aguirre CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C085307
Plaintiff and Respondent, (Super. Ct. No. 10F04114)
v.
CARLOS RENEE AGUIRRE,
Defendant and Appellant.
A man in a mask walked into a Bank of America with a gun, robbed the branch,
and carjacked a bank employee. He left the mask behind. A jury found defendant Carlos
Renee Aguirre guilty of carjacking and six counts of second degree robbery. The court
sentenced defendant to 30 years, four months in state prison. Defendant appeals, arguing
the court erred in (1) excluding third party culpability evidence; (2) denying his Marsden
motion;1 (3) denying his motion for a new trial; and (4) declining to strike his prior
1 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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conviction under Romero.2 Defendant also contends remand is required for the trial court
to exercise its discretion to strike firearm enhancements. We shall remand so the trial
court may consider exercising its discretion under Penal Code sections 667, subdivision
(a) and 12022.53, subdivision (h).3 On remand, defendant may also renew his Romero
motion, denied by the trial court. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
An amended information charged defendant with carjacking, count one (§ 215,
subd. (a)) and second degree robbery, counts two through eight (§ 211). As to each
count, the amended information alleged defendant personally used a firearm (§ 12022.53,
subd. (b)) and that he had a previous serious felony conviction (§§ 667, subd. (a), 1192.7,
subd. (c)) for assault with a firearm (§ 245, subd. (a)(2)), which qualified as a prior strike
(§ 667, subds. (c) & (e)(1)). The trial court granted the prosecution’s motion to dismiss
count eight.
A jury trial followed. The following facts and evidence were presented at trial.
The Incident
Early one morning on January 22, 2010, a man in a mask walked into a Bank of
America branch. He grabbed the assistant manager, Kelly Cary, from behind and held a
gun to her head. The gunman ordered everyone to the ground.
The gunman jumped up on the counter and pointed the gun at teller Denise Ceja
and demanded money. Ceja complied. The gunman walked along the counter to teller
Elizabeth Mesghina and got money from her. The tellers put the money, totaling $35,000
to $50,000, in a backpack.
2 People v. Superior Court (Romero) 13 Cal.4th 497 (Romero).
3 All statutory references are to the Penal Code unless otherwise designated.
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The gunman jumped down off the counter and went up to Cary. He pointed his
gun at her and demanded the keys to her car. Cary gave him the keys.
Bank customer Samuel Arenas testified the gunman jumped over him. Another
customer, Erika Figueroa Alvarado, testified the robber quickly jumped up on the
counters using his hands and then jumped off the counters. Alvarado did not notice any
sign that the gunman was injured, but did not watch his legs after the robbery as he
walked out the door.
Flight and a Mask
The gunman ran to Cary’s Ford Thunderbird and drove away. Michael Smith,
who was in the parking lot, saw the gunman run to the car, and called 911. Smith saw the
profile of the gunman as he ran toward the car. Smith did not remember if the gunman
had a limp. Smith saw the gunman leave his mask on the ground.
Officer Matthew Hubbard arrived, and Smith told him about the Thunderbird.
Smith also pointed out the mask, which had been left untouched after the gunman fled.
Hubbard took the mask and booked it into evidence. The mask was a black ski mask or
beanie with eyehole cutouts.
The Thunderbird was abandoned about a half-mile from the bank. A neighbor
testified that about a half-hour after the robbery began, the car stopped abruptly across
the street. A young man got out, put on a backpack, and ran away.
DNA Evidence
Criminalist Nikki Sewell cut three samples from the recovered beanie/mask to test
for DNA. Sewell “used common sense to determine where [she] might best be able to
get DNA.” The bridge of the nose is often sweaty, so Sewell took a sample from the nose
area. To obtain saliva, Sewell took two samples from the mouth area. She marked the
samples from the nose and mouth Items C, D, and E.
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Item C yielded a partial DNA profile. Item D yielded a mixed DNA profile of two
people, with a major and minor contributor. Item E yielded a full DNA profile. Sewell
uploaded Item E’s profile to a DNA database and obtained a match with defendant.
An officer obtained a buccal reference sample from defendant. Sewell got
defendant’s DNA profile from the sample. Sewell found Item C’s partial profile was
consistent with defendant’s DNA; Item D’s major contributor, from which a partial
profile was obtained, was consistent with defendant’s DNA; and Item E’s full profile was
the same. Item E’s profile was estimated to randomly occur among unrelated individuals
in about one in 80 sextillion African-Americans, one in 11 sextillion Caucasians, and one
in 160 quintillion Hispanics.
Sewell testified that, when there are major and minor contributors, a DNA profile
does not reveal when each person’s DNA was deposited or who wore the item first.
Sewell would expect a major contribution from someone who wore the mask, especially
around the mouth. Only one allele of DNA on the cuttings did not belong to the
defendant. Sewell testified it could have come from a variety of contacts with the mask
other than wearing it, such as touching it.
Description Testimony
The bank branch manager, Jeremy Couch described the robber as male, based on
the voice, about 5 feet 7 inches tall, 140 pounds, wearing a mask, a hoodie, a long-
sleeved shirt, gloves, and pants. The mask’s eyeholes revealed the robber was lighter
skinned, but Couch was unsure if the robber was white. Couch described the weapon as a
black automatic handgun, but could not rule out an Airsoft or BB gun.
The teller Mesghina could not tell whether the robber was male or female. The
assistant manager Carey testified the robber had a male voice, brown eyes, and was
around 5 feet 7 inches tall. Carey, familiar with firearms, described the gun as black and
stated it appeared to be real.
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Bank customer Arenas described the robber as thin and Latino, based on the color
of his skin around his eyes. He estimated the robber’s height at 5 feet 2 inches, but later
stated he could not recall the robber’s height. Arenas described the gun as black and
similar to the gun the interviewing officer carried.
Customer Alvarado saw the robber’s face and profile briefly before he entered the
bank. Alvarado saw the robber put on the mask. At the time, Alvarado was checking her
cell phone while watching people come into the bank. Alvarado described the robber as a
male Mexican, about 5 feet 7 inches tall, 160 pounds, and around 27 or 28 years old. The
gun was black and looked heavy and big like a police gun.
Smith, the parking lot witness, described the robber as male, about 20 years old,
possibly Hispanic, with short hair, about 5 feet 10 inches tall, medium to skinny in build,
wearing a mask pulled up to his forehead, and carrying a full black backpack.
The neighbor who saw the car abandoned described the man who fled from the car
as having close-cropped hair, slim, with a medium skin tone.
Photo Lineup
Five months after the robbery, a detective showed Alvarado a lineup with photos
of six similar people, with defendant’s photo taken a month after the robbery in position
No. 4. Alvarado pointed to photo No. 6 saying that it depicted the hairline, eyebrows,
and eyes similar to the robber’s. She did not identify any of the photos as the robber.
Alvarado testified that when she viewed the photo lineup the robbery was still fresh in
her mind.
At trial, Alvarado first testified she identified the robber in the photo with 100
percent certainty, but subsequently stated she told the detective it was only similar to the
robber. Alvarado also testified she had identified the photo in position No. 4; she did not
recall it as being in position No. 6.
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Alvarado stated the person in position No. 4 was the person she saw putting on the
mask outside of the bank; “that’s the person that robbed the bank.” She denied the reason
she identified the photo in position No. 4 at trial was because she saw defendant in court.
Alvarado stated she had not noticed him.
The day of the robbery, Alvarado told an officer she would recognize the robber if
she saw him again. At the photo lineup she made a similar assertion. At trial, over seven
years later, when Alvarado was asked whether defendant was the robber, she stated, “At
this point, I wouldn’t be able to know.”
Defendant’s Cell Phone Records
A detective testified as an expert in the reading and interpretation of cell phone
records and cell sites. A cell phone connects to the cell site with the strongest signal.
However, occasionally, if too many calls come into a cell site, some may be bounced to a
nearby cell site.
The detective reviewed the records for defendant’s phone, which revealed the
call’s initiating and terminating cell sites, but not cell sites during the call. The morning
of the robbery, a call was made from defendant’s phone and connected to a cell site a
half-mile from the bank. About a half-hour later, two calls were made from defendant’s
cell phone, connecting to a tower about one and one-half miles from his home and ten
miles from the bank.
Defense Case
Defendant’s Testimony
Defendant testified at trial he was 5 feet 6 inches tall and weighed 175 pounds. In
2010, he weighed between 135 and 150 pounds. In 2010, defendant possessed a firearm.
Defendant testified about prior criminal convictions. In 2013, he was convicted of
misdemeanor domestic violence against his ex-wife. In 2009, defendant was convicted of
driving under the influence (DUI), for which he was sentenced in 2010. When he
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pleaded guilty to the DUI in February or March 2010, defendant knew he might be
required to serve time or pay fines. However, defendant denied robbing the bank to pay
for either counsel or fines. He was represented by the public defender’s office.
In June 2010, defendant discovered he was a suspect in a robbery. Although he
had no specific recollection of exactly what he was doing that day, defendant did not rob
the bank on January 22, 2010.
Defendant’s Injury
On January 2, 2010, while snowboarding, defendant suffered a severe back injury.
He received first aid at the scene and was transported to the emergency room at a nearby
hospital. Although he was diagnosed with a lumbar compression fracture, defendant
lacked insurance and opted to have friends take him home. Defendant was unable to
move unassisted for the first two weeks and was able to move with assistance for the next
two weeks. He was unable to work in January 2010 and did not return to work until mid-
February 2010.
Defendant conceded that by January 22, 2010, he had recuperated enough to leave
home, but did not recall what he was doing on that date. By that date, defendant could
drive, walk around, and go into stores, but he could not run. He could get into and out of
his truck very slowly. Defendant had medical expenses, but denied robbing the bank to
pay for them.
Mask/Beanie
Defendant testified he owned several beanies similar to that recovered by the
police at the scene of the robbery. However, his beanies did not have eyehole cutouts.
Defendant acknowledged the recovered beanie could be his because it looked like one he
owned.
The day of the snowboarding accident defendant was wearing a beanie and had
another beanie in his truck. After defendant returned home, he asked his ex-wife to get
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his snowboarding equipment out of the truck. He did not see anyone take his
snowboarding equipment with them when they left his home.
Ex-wife’s Testimony
Defendant’s ex-wife testified she was previously married to defendant and they
have two children. In 2013, she filed a domestic violence complaint against defendant
and obtained a restraining order. At the time of the trial they had been separated for over
a year, but still shared custody of their children.
In early January 2010, defendant told his ex-wife he had injured his back and leg
in a snowboarding accident. She was not present when the accident occurred. After the
accident, defendant had trouble standing and walking, so she cared for him. She helped
him out of bed, got him to the bathroom, cooked, and cleaned.
Defendant’s ex-wife would arrive at defendant’s house around 7:30 a.m. before
she went to work at 8:00 a.m., returning around 5:30 p.m. She continued this schedule
for two to three weeks, and then only two to three times a week. She did not know what
defendant did on January 22, 2010, between 7:45 a.m. to 5:30 p.m., because she was at
work.
Defendant could not function on his own for about three weeks after the accident.
He walked with a limp, but she could not recall on which leg. She testified defendant
suffered from his injuries for about three to four weeks.
Defendant’s ex-wife never observed defendant with extra money, nor did she see
any guns in his home. She testified that a few days after she began taking care of him,
defendant asked her to get his snowboarding equipment out of his truck. However, the
equipment was not in the truck or in the house.
In 2013, she spoke to a district attorney about the domestic violence incident.
When asked about the robbery, defendant’s ex-wife said she did not know anything about
it. She did not mention defendant’s injuries or her caring for him. In February 2017,
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prior to her trial testimony, she spoke to a defense investigator about defendant’s injuries
and taking care of him in 2010.
Defense Investigator
A defense investigator testified he performed a distance-time driving analysis
using Google Maps for three travel routes from where the Thunderbird was found to
defendant’s home at 9:20 and 9:40 a.m. The analysis yielded three routes: (1) 9.7 miles,
with a travel time of between 22 and 40 minutes; (2) 11.2 miles, with a travel time of
between 24 and 45 minutes; and (3) 11.4 miles, with a travel time of between 14 and 22
minutes. The defense argued there was insufficient time for defendant to have robbed the
bank at 9:26 a.m. and then be back at his house by 9:41 a.m., as shown by the cell phone
data.
The investigator testified he did not know if what was reflected on the maps was
the same information that would have existed seven years earlier. He also admitted that
actual driving times can vary from those produced by Google Maps. Drivers can also
speed and break traffic laws to get somewhere faster.
Defendant’s Phone Records
Defendant confirmed the cell phone records the detective analyzed were for his
phone number, but stated he was not at the bank. The phone was always in his
possession; he did not lend it to anyone. He stated that if his phone was out of his home’s
area in the morning on January 21 and 22, 2010, then he was also in the area, possibly
running errands. He might have been traveling in the area but did not know what he was
doing.
Prior Conviction for Assault with a Firearm
In August 1997, following a no contest plea, defendant was convicted of assault
with a firearm with personal use of a firearm. (§§ 245, subd. (a)(2), 12022.5, subd. (a).)
The offense occurred on September 3, 1996. While one minute order listed defendant’s
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birth date as April 9, 1982, another minute order and the probation report listed his birth
date as April 9, 1981, making defendant 15 years and five months old when he
committed the offense.
Under the negotiated disposition, defendant was found to be unfit to be tried as a
juvenile, despite an earlier finding that he was fit. The offense qualified as a prior serious
felony conviction and a prior strike. (§§ 667, subd. (a)(1), 667, subds. (c) & (e)(1).)
Verdict and Sentencing
The jury found defendant guilty of counts one through seven and found true the
personal use of a firearm allegation as to each count. The court found the prior
conviction allegation true.
The court sentenced defendant to 30 years, four months: (1) 20 years on count one,
consisting of the middle term of five years, doubled, plus 10 years for the firearm
enhancement; (2) the middle term of three years on count two, stayed pursuant to section
654; (3) three years and four months on count three, consisting of one-third the middle
term of one year, doubled, plus three years and four months for the firearm enhancement,
consecutive; (4) 13 years on each of counts four through seven, consisting of the middle
term of three years, plus 10 years for the firearm enhancement, concurrent; and (5) five
years for the prior conviction enhancement, consecutive. Defendant filed a timely notice
of appeal.
DISCUSSION
I
Third Party Culpability Evidence
Defendant sought to present evidence that another man, Jorge Fajardo, committed
the robbery. After briefing and a hearing, the trial court found the evidence inadmissible.
Defendant argues the trial court’s decision violated his constitutional rights.
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A. Background
Defense counsel filed a motion in limine seeking admission of evidence of third
party culpability. The motion stated that Janelle Cobb, who lived near the bank,
contacted police on March 31, 2010. Cobb expressed concern that her baby’s father and
boyfriend, Jorge Fajardo, might have been involved in the robbery. The morning of the
robbery she witnessed the police response and learned of the robbery. An officer
interviewed Cobb and told her the suspect was a young Hispanic male.
Cobb stated Fajardo had told her before the robbery it would be easy to rob a
bank. Cobb called Fajardo’s work and learned he had called in sick the day of the
robbery. He lied to her about going to work and told her not to worry about it. Cobb also
saw police dogs sniffing across the street where Fajardo used to live. Fajardo changed
the lock on her storage unit and did not give her a key. Fajardo told Cobb he was storing
sheet rock in the unit. She saw him place a duffle bag in the unit, but he would not tell
her what was in it. Cobb tried to get the key by telling him the fire department was going
to inspect the unit. Fajardo cleaned out the unit and again changed the locks.
Cobb spoke with a mutual friend who also expressed concern that Fajardo and his
father were involved in the robbery and said they would be robbing three banks. An
officer showed Cobb a still photo of the bank robber from the surveillance video. She
recognized the jacket worn by the robber as one worn by Fajardo when he got cold.
Fajardo also owned a BB gun and she had seen him use a sharpie to make the tip black so
it looked real. Cobb described Fajardo as 5 feet 6 inches to 5 feet 7 inches tall with a
medium build and dark hair.
The defense motion concluded: “The probative value significantly outweighs the
prejudicial effect, and said testimony will not significantly delay the trial or confuse the
jury. Ms. Cobb and the detective can attest to what they observed and what follow-up
works [sic] was done as a result of her statement.”
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In opposition, the prosecution argued: “In the case before the court, defense seeks
to admit evidence that through a statement from Janelle Cobb shifting culpability from
the defendant to a Mr. Jorge Fajardo. Ms. Cobb is the mother of Mr. Fajardo’s daughter,
she gives [sic] her statement to the police on March 31, 2010, approximately two months
after the defendant committed the bank robbery. The statement from Ms. Cobb is largely
uncorroborated and tainted by the fact that she states Mr. Fajardo has never given her any
money for child support. Ms. Cobb’s statement provides no direct or circumstantial
evidence to link Mr. Fajardo to the crime.”
At the motion in limine hearing, defense counsel explained Cobb lived close to the
bank and, after seeing the aftermath of the robbery, contacted police. She told them she
might be able to identify the robber. A few days later an officer interviewed Cobb at her
home. Cobb said prior to the robbery, Fajardo told her it would be easy to rob a bank and
admitted to a mutual friend that he was going to rob a couple of banks. Cobb identified
Fajardo in a photograph of the robber, recognizing a sweater he wore with a distinctive
emblem. Cobb stated: “He wears that sweater. He has a sweater that looks like that.
And he wears it when it’s cold and I think it’s his sweater. I think it’s him.”
The court responded: “It does sound, you know, now that you told me that she
actually looked at a surveillance video of the incident and then said somebody wearing a
sweater with an emblem that matched a sweater that -- so this person is her boyfriend.”
Defense counsel interjected that Fajardo and Cobb were still together and had a child.
The court continued: “Okay. So the sweater that her then boyfriend wore, that’s pretty
direct evidence that maybe he may have been involved. That’s a little different. [¶]
What do you think about that, Ms. Mielke [prosecutor]? Although you know what, I
think the DNA evidence kind of seals the deal, though.”
The prosecutor argued Cobb’s statement was largely uncorroborated and tainted
by bias since she said Fajardo never paid child support. It failed to link Fajardo to the
crime and was speculation based in part on inadmissible hearsay of the friend. The
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prosecutor also argued the “sweatshirt” Cobb recognized was “a navy blue nondescript
sweatshirt.” In addition, the prosecutor argued for exclusion under Evidence Code
section 352. Relying on People v. Johnson (1988) 200 Cal.App.3d 1553 (Johnson), the
prosecutor further argued third party culpability evidence should not be admitted when
other evidence excludes the third party as the perpetrator. Here, the DNA on the beanie
worn by the robber contained a full profile match to the defendant.
The court observed that based on “the evidence that she identifies, the person with
the sweater . . . but for the DNA evidence, I think the court has to make a finding that the
third party culpability evidence is such that it would raise a reasonable doubt of the
defendant’s guilt.” The court added, however, under Johnson “I think the DNA evidence
linking your client to the commission of the crime I think would knock out the relevance
of this third party culpability.”
Defense counsel argued there was a mixture of DNA from more than one person
on the beanie, the entire beanie was not tested, and the beanie might have been lost or
obtained by a third party. According to defense counsel, “the difference here between
Johnson and this case is, here we have a beanie who no one says there’s not one single
witness that says we saw the perpetrator take the beanie off and throw it on the ground.
It’s circumstantial evidence it was found in the area . . . .” The prosecutor countered that
all the other samples from the beanie were complete matches with defendant.
The court concluded: “I just don’t think that the evidence, even though there may
be a motive for [Fajardo] to have done it . . . and he may have had the opportunity, I just
don’t think it’s enough to raise a reasonable doubt as to [defendant’s] culpability. And I
think particularly in light of the DNA evidence, to me that still seems to be there.” The
court denied defendant’s motion to admit third party culpability evidence.
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B. Discussion
Defendant argues the trial court abused its discretion in excluding the third party
culpability evidence. According to defendant, the court violated his constitutional rights
to a jury trial and due process in excluding evidence that Fajardo committed the charged
offenses.
Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Evidence
raising a reasonable doubt as to a defendant’s guilt, including evidence that a third party
committed the crime, is relevant. Such evidence is admissible if capable of raising a
reasonable doubt of a defendant’s guilt. However, evidence that another person had
motive or opportunity, without more, is not relevant. To be relevant, there must be direct
or circumstantial evidence linking the third party to the actual commission of the crime.
(People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).) In order for third party evidence to be
relevant and admissible, the evidence need not show substantial proof the third party
committed the crime, but only be capable of raising a reasonable doubt of a defendant’s
guilt. (People v. Ghobrial (2018) 5 Cal.5th 250, 282-283.)
The trial court may exclude relevant evidence if it creates a substantial danger of
prejudicing, confusing, or misleading the jury, or would consume an undue amount of
time. (Evid. Code, § 352.)
We review the trial court’s exclusion of evidence for an abuse of discretion.
(People v. Chism (2014) 58 Cal.4th 1266, 1291.)
Defendant presents this interpretation of the third party evidence: “But here Cobb
provided evidence which directly and circumstantially connected Fajardo to the actual
perpetration of the crime. Cobb not only provided direct evidence that Fajardo was the
gunman, but she also provided substantial circumstantial evidence that Fajardo was the
perpetrator of the bank robbery. The excluded defense evidence showing that Fajardo
committed the charged offenses thus raised a reasonable doubt of [defendant’s] guilt
because the prosecution’s evidence showed only a single, lone perpetrator of the bank
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robbery and carjacking. In other words, if Fajardo was the gunman—as shown by
Cobb’s statement—then [defendant] was necessarily excluded.”
The trial court carefully considered the evidence of Fajardo’s culpability for the
crimes charged against defendant. The court specifically referenced Cobb’s
identification of the sweater worn by the robber in the video, finding the identification,
considered in isolation, would raise a reasonable doubt of defendant’s guilt. The
evidence also revealed Fajardo may have had motive and opportunity to commit the
robbery. However, the court concluded: “I think the DNA evidence linking your client
to the commission of this crime . . . would knock out the relevance of this third party
culpability.” In reaching this conclusion, the court cited Johnson.
In Johnson, the defendant was charged with a series of robberies and was
convicted, based in part, on the fact his fingerprints were found at the robbery scenes and
on the stolen property. (Johnson, supra, 200 Cal.App.3d at pp. 1556-1558.) The
defendant sought to introduce evidence of a third party as the robber. (Id. at p. 1564.)
The appellate court affirmed the trial court’s refusal to admit the evidence. The court
found “even the strongest circumstantial evidence case of third party culpability does not
raise a reasonable doubt about a defendant’s guilt when fingerprints found at the scene of
the crime could not have been those of a third party . . . Simply put, [defendant’s]
evidence raised a possibility that the prosecution’s evidence made an impossibility. As
his proffered evidence could not logically raise a reasonable doubt about his guilt, the
trial court properly excluded it.” (Id. at p. 1564.)
The reasoning of Johnson has been called into question by Holmes v. South
Carolina (2006) 547 U.S. 319 [164 L.Ed.2d 503]. Holmes held that an evidentiary rule
that precluded a defendant from introducing third party culpability evidence when there
was strong evidence of his guilt violated his federal constitutional rights to a fair trial and
to present a defense. (Id. at pp. 330-331.) The California Supreme Court in People v.
Page (2008) 44 Cal.4th 1, 37, footnote 16, acknowledged the potential impact of Holmes.
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Here, the trial court did not indicate it was bound by Johnson or that case was
decisive in the court’s exclusion of third party culpability evidence, notwithstanding the
court’s comments regarding Johnson and the strength of the DNA evidence. Instead, the
court made the proper inquiry as to whether evidence of third party culpability could raise
a reasonable doubt as to defendant’s guilt. (See Hall, supra, 41 Cal.3d at p. 834.) “I just
don’t think that the evidence, even though there may be a motive for [Farjado] to have
done it . . . and he may have opportunity, I just don’t think it’s enough to raise a
reasonable doubt as to [defendant’] culpability.”
Defendant argues “the DNA evidence merely showed that [defendant] had contact
with the beanie at some point, which was not disputed. Moreover, the DNA evidence did
not eliminate Fajardo as a possible perpetrator of the bank robbery.” However, the DNA
evidence, coupled with defendant’s cell phone records, various witnesses’ descriptions of
the robber, and Alvarado’s identification of defendant, provided strong evidence of
defendant’s guilt.
The court did not abuse its discretion in concluding that the introduction of the
third party evidence would not have raised a reasonable doubt about defendant’s guilt.
“When a trial court exercises its discretion to exclude evidence and does not abuse that
discretion, the exclusion of evidence (including proffered third party culpability
evidence) does not impermissibly infringe on a defendant’s federal constitutional rights.”
(People v. Shorts (2017) 9 Cal.App.5th 350, 358-359.)
II
Marsden Motion
Defendant contends the trial court erred in denying his request for substitute
counsel following the verdicts, because, during his Marsden hearing, defendant made a
showing that his right to counsel had been substantially impaired. Defendant focused on
four areas of ineffective assistance of counsel: failure to obtain and present defendant’s
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hospital records; delay in obtaining defendant’s ex-wife’s statement; failure to impeach
Alvarado with surveillance videos; and poor communications between defendant and
counsel.
A. Background
After the jury returned its verdicts, defendant moved for appointment of new
counsel to file a motion for a new trial, based in part on a claim of ineffective assistance
of counsel. The court held a Marsden hearing, at which defendant presented the
following objections to defense counsel’s representation.
Hospital Records
Defendant argued defense counsel failed to obtain and present hospital records of
his snowboarding injury to support his testimony that he would have been incapable of
jumping on the bank counter or running to the parking lot. The jury was unable to
examine the records, hear from the treating physician, or see the X-rays of his lumbar
injury. The records were also relevant to corroborate his testimony and rebut the
prosecution’s suggestion that defendant lied about going to the emergency room.
Defense counsel testified he had subpoenaed the ski patrol records and the hospital
records, but never received the latter. As to the hospital records, defense counsel stated:
“[W]e sent everything we needed to them . . . and they never arrived to the Court. And
the clerk indicated to me that the address was the home court as opposed to the H Street
address here. [¶] We re-subpoenaed them again and they never showed up.”
Defense counsel explained: “My concern, my main concern with this trial was not
the hospital records, but the DNA evidence, and then later on when the district attorney
discovered the phone records, that also became my main concern, because those two bits
of evidence put my client at the scene. His phone pinging by the phone tower and his
DNA on the ski mask. [¶] So that was, for lack of a better term, the 800-pound gorilla in
the room I had to deal with. Hospital records were key to the point where it indicates that
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my client did go to the hospital that day, but as per his statement, he was there but then he
left without consent of the doctor. He just up and left the emergency room.”
In addition, defendant told defense counsel he did not see a doctor afterwards. “So
although [the records] were . . . important to prove that there was an injury before the
robbery, I had nothing to prove that he was still injured at the time of the robbery other
than [defendant’s ex-wife’s] testimony.” Defense counsel also noted the ski resort
records, which verified defendant’s injury, were admitted into evidence.
Ex-wife’s Statement
According to defendant, defense counsel waited for over six years before
interviewing his ex-wife about defendant’s injury. The delay allowed the prosecution to
discredit her testimony.
Defense counsel stated he had spoken with defendant’s ex-wife several times over
the phone. He thought, wrongly, that she had been interviewed by the public defender’s
office. She had been represented by the public defender’s office and appeared on a list of
witnesses defendant had given him. When defense counsel learned she had not been
interviewed, around the time of jury selection, he sent an investigator to interview her.
Failure to Impeach Alvarado
Defendant contended defense counsel failed to impeach Alvarado with
surveillance video that showed she was looking at her cell phone before and after the
robber entered the bank, preventing her from seeing the robber’s face.
Defense counsel stated, as Alvarado testified, he looked again at the surveillance
videos. In one video, Alvarado looked towards the bank’s front doors, corroborating her
testimony that she saw the robber enter the bank. According to defense counsel “my trial
strategy at that point that she was the only individual in the bank that got a good look at
the individual’s face and was unable to identify my client shortly thereafter [in the photo
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lineup]. [¶] . . . I wanted to paint her in a light that she was telling the truth, that she was
unable to recollect who it was that was in there, but she did get a good look at the guy.”
Defense counsel explained he had viewed different video angles prior to and
during trial. He pointed out to defendant that Alvarado was looking at the door when the
robber entered: “So, therefore, she did get a good look at the guy but still was unable to
identify [defendant] in the photographic lineup. So unfortunately, when she comes to
court now, she sees [defendant] here in court, and I believe that her identification in court
now was based on the fact that he is in the defendant’s chair and not because that is the
individual who she recalls seeing at the bank.”
Communications Between Defense Counsel and Defendant
Defense counsel stated communications between him and his client were
“adequate and substantive” and that they “communicated well.” Defendant
acknowledged, “We do have a good rapport.”
Trial Court’s Ruling
The court determined defense counsel’s performance did not fall below the
constitutionally required standard of legal representation. The court reasoned: “And
even if he had committed errors . . . I don’t think that . . . anything that [defense counsel]
did or failed to do would have resulted in a different result, such that I can say that my
confidence in the verdict is undermined or called into any kind of serious question,”
based on the strength of the evidence against defendant. The court cited the DNA
evidence, the cell tower records, and Alvarado’s in-court identification of defendant’s
photo as “all very powerful evidence.”
As for the medical records, the trial court stated: “I don’t think those medical
records would have made any difference in this case, given all the other evidence. [¶] I
think his testimony and that of [his ex-wife] that he was injured, was sufficient to have
established the nature and extent of his injuries. And the issue and extent to which those
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injuries, if they were as he claimed, would have impeded or made it impossible for him to
jump over the bank counter as he’s indicated.”
The court found the relationship between defendant and defense counsel had not
broken down: defense counsel indicated “they communicated adequately, regularly, and
substantively.” The court also noted defendant admitted “he had a pretty good rapport”
with defense counsel.
The court denied the Marsden motion and denied defendant’s request for new
counsel. Defendant reiterated his claim that his relationship with defense counsel was in
ruins. He argued defense counsel misled him about the progress of his defense. Defense
counsel minimized the significance of his hospital records during the hearing, in stark
contrast to counsel’s earlier statements about the importance of the records. The court
disagreed, again finding no “breakdown such as to justify granting a Marsden motion, so
I’m not granting it.”
B. Discussion
Marsden, supra, 2 Cal.3d 118 established the right of a criminal defendant to
make a motion to discharge court appointed counsel and substitute new counsel. Under
Marsden, a defendant who makes such a motion must be allowed to state the specific
reasons for his or her dissatisfaction with currently appointed counsel. (Id. at pp. 123-
124.)
If the defendant establishes that his or her right to counsel has been substantially
impaired, substitute counsel must be appointed. (People v. Sanchez (2011) 53 Cal.4th 80,
90.) Substantial impairment can be established in two ways: when the attorney is
providing constitutionally substandard representation, or when the defendant and defense
counsel have become embroiled in such an irreconcilable conflict that ineffective
representation is likely to result. (People v. Clark (2011) 52 Cal.4th 856, 912.)
Appointment of new counsel is appropriate in the face of an irreconcilable conflict
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between a defendant and defense counsel because such a conflict is fatal to an effective
attorney-client relationship. (People v. Ortiz (1990) 51 Cal.3d 975, 984.) In determining
whether such a destructive conflict exists, we consider the degree of hostility and the
impact such hostility has on communication between the defendant and defense counsel.
(Hudson v. Rushen (9th Cir. 1982) 686 F.2d 826, 832; People v. Daniels (1991)
52 Cal.3d 815, 843.)
We review the trial court’s denial of a defendant’s Marsden motion for abuse of
discretion. We do not reverse unless the defendant has shown the trial court’s failure to
replace counsel substantially impaired the defendant’s right to assistance of counsel.
(People v. Taylor (2010) 48 Cal.4th 574, 599.) When reviewing whether the trial court
abused its discretion, we consider whether it made an adequate inquiry into the
defendant’s complaints. (People v. Mungia (2008) 44 Cal.4th 1101, 1127-1128.)
To establish ineffective assistance of counsel, a defendant must show counsel’s
performance was deficient and fell below an objective standard of reasonableness, and it
is reasonably probable that a more favorable result would have been reached absent the
deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688
[80 L.Ed.2d 674, 693.]) A reasonable probability is a “probability sufficient to
undermine confidence in the outcome.” (Id. at p. 694.)
Defendant argues the medical records were integral to his defense, that his
debilitating back injury prevented him from being physically able to jump up and down
on the counter as the robber did. In addition, defendant points out that the prosecutor
noted the lack of hospital records during closing argument: “So yes, there was an
accident at Boreal, but the evidence shows he refused treatment. The evidence shows
that he left and did not go to the ER. If he’d gone to the ER, we would have those
medical records. If he had gotten x-rays and had a serious lumbar fracture, I think he
said, we’d see some x-rays. We’d see some medical proof. We’d see a diagnosis. [¶]
All we have is a ski patrol report. There’s no evidence that three weeks later he had a
21
limp. The defendant himself said when he testified that by January 21st and 22nd, 2010
he’d recuperated enough that if he had to go some place, he could go. He could make it
to court, he could go run errands, he could get in and out of his Chevy Silverado truck.
[¶] The reason why, there’s no evidence the defendant had a limp or serious, severe
injury that would have prohibited him from committing this offense because it didn’t
exist. It’s not true.”
Defense counsel testified he twice subpoenaed the hospital records, but they never
arrived. The records would show defendant was injured, but also that defendant left the
hospital without receiving treatment and received no followup treatment. The ski resort
records, which were admitted into evidence, stated defendant had been injured in the
snowboarding accident. As the trial court noted, defendant and his ex-wife both testified
as to the nature and extent of defendant’s injuries. Both stated defendant could not have
made the moves made by the robber.
Defendant argues only the hospital records established the type and severity of the
injury and without the records “the jury was left with the false impression that
[defendant] suffered only a minor injury at the ski resort, and left without seeking
medical attention.” We disagree. The missing hospital records would only have added
more evidence that defendant suffered an injury, not that he was still injured at the time
of the robbery, or the extent of the injury at the time of the robbery.
As for defense counsel’s delay in obtaining defendant’s ex-wife’s statement,
defendant contends the delay undermined her credibility and the prosecution suggested it
was fabricated. Defendant also labels defense counsel’s delay “devastating.” However,
once defense counsel realized she had not been interviewed he swiftly moved to rectify
the situation. We agree with the trial court’s assessment it was an honest mistake, which
did not substantially impact defendant’s case.
Defendant also faults defense counsel for failing to use bank surveillance videos to
impeach Alvarado’s testimony that she saw the robber’s face before he put on the mask
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and entered the bank. According to defendant, the videos reveal a side-view of Alvarado
that show her looking at her cell phone for at least 22 seconds before the robber entered
the bank. Defendant contends, “The bank surveillance videos thus contains material
evidence impeaching Alvarado’s testimony. [Defense counsel’s] failure to use the bank
surveillance videos to impeach Alvarado’s testimony – and his mistaken understanding of
what the videos showed – severely undercut [defendant’s] defense of actual
innocence . . . .”
Defense counsel explained his trial strategy of showing Alvarado was the only
person in the bank to see the robber’s face and that she could not identify defendant as
the robber shortly afterward. Although at trial Alvarado identified defendant as the
robber after seeing him in the courtroom, the latter identification does not invalidate
defense counsel’s initial strategy. The fact counsel’s trial strategy was not successful
does not make counsel ineffective. We do not second-guess defense counsel’s tactical
decision in retrospect. (People v. Cox (1991) 53 Cal.3d 618, 656; People v. Wallin
(1981) 124 Cal.App.3d 479, 484-485.)
The trial court did not err in denying defendant’s Marsden motion.
III
Motion for a New Trial
In a related claim, defendant argues the trial court erred in denying his motion for
a new trial based on ineffective assistance of counsel. Much of our preceding analysis
also applies to this claim.
A. Background
After the court denied his Marsden motion, defendant proceeding in pro. per. filed
a motion for a new trial based on ineffective assistance of counsel. Defendant again cited
defense counsel’s failure to present his hospital records, delay in obtaining defendant’s
ex-wife’s statement, and failure to impeach Alvarado with bank surveillance videos. The
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court held a hearing and heard testimony from both the defense investigator, defense
counsel, and defendant.
The trial court denied the motion. According to the court, defense counsel’s
performance was not deficient “applying objective standards of reasonableness under
prevailing professional norms.” Instead, counsel’s performance “fell well within that
standard.” The court found the evidence implicating defendant very strong, citing the
DNA samples on the beanie, cell phone records, and Alvarado’s in-court identification.
As to Alvarado’s testimony, the court noted there were some questions about the
identification, “but all that was put to the jury.”
The court also determined the medical records were of “marginal relevance.” The
records would have established defendant’s original injury, not his exact condition the
day of the robbery. Defendant and his ex-wife both testified about his injuries at the time
of the robbery.
B. Discussion
Ineffective assistance can provide the basis for a new trial based on the
constitutional duty of trial courts to ensure defendants are accorded due process. (People
v. Callahan (2004) 124 Cal.App.4th 198, 209.) We review the denial of a motion for a
new trial de novo but defer to the trial court’s factual findings if they are supported by
substantial evidence. (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225.)
Defendant’s request for a new trial was based on defense counsel’s errors set forth
in his Marsden motion: failure to obtain medical records, delay in obtaining his ex-
wife’s statement; and failure to impeach Alvarado with surveillance video. Defendant
agrees much of the evidence presented in connection with the Marsden motion is relevant
to the new trial motion, but asserts additional evidence was presented in the latter
proceeding.
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However, the supplemental evidence defendant presented on the new trial motion
added little to the evidence set forth in the Marsden hearing. Regarding the medical
records, defendant testified that, “When I met [defense counsel] in 2011 we discussed the
case, we discussed the defenses that we would present based upon all the discovery and
my injury. We did in fact plan a medical defense. [¶] I gave [defense counsel] all the
information he needed to obtain the medical records which are indicated in his notes that
are made part of the exhibits. He wrote down the hospital name, he wrote down who I
went with to Boreal ski resort. And he assured me many a times throughout the six years
that he was my attorney that he would have the medical records for trial, he would have
the treating doctor testify at trial. And like I said, we had this conversation numerous,
numerous times.”
Defense counsel also acknowledged that his delay in obtaining defendant’s ex-
wife’s testimony regarding defendant’s injuries was used by the prosecution to impeach
her testimony.
However, this additional evidence does not change our conclusion, in connection
with defendant’s Marsden motion, that defendant failed to show defense counsel’s
performance was ineffective. The trial court did not abuse its discretion in denying
defendant’s motion for a new trial.
IV
Firearm Enhancements
Defendant also requests remand for the trial court to determine whether to exercise
its new discretion to strike the firearm enhancements. The People agree remand is
appropriate.
A. Background
The jury found true that during the commission of the offenses in counts one
through seven, inclusive, defendant personally used a firearm. (§ 12022.53, subd. (b).)
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The court did not strike any of the firearm enhancements, but instead imposed sentence
on the firearm enhancements, which included terms of 10 years on count one and three
years four months on count three, plus stayed and concurrent terms on the remaining
firearm enhancements.
Effective January 1, 2018, section 12022.53, subdivision (h), was amended to
provide: “The court may, in the interest of justice pursuant to Section 1385 and at the
time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by
this section. The authority provided by this subdivision applies to any resentencing that
may occur pursuant to any other law.” Defendant contends the amendment should apply
retroactively. The People agree.
B. Discussion
In order to avoid remand, the record must clearly indicate the sentencing court
would not have exercised its discretion to lessen the sentence. (People v. Askey (1996)
49 Cal.App.4th 381, 389; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
Although the People note some of the court’s comments during sentencing on the firearm
enhancements “make it unlikely that it would have exercised its discretion to strike all of
the firearm enhancements, it is unclear whether the court would have chosen to strike
some of them if it had known that it had the discretion to do so.” Accordingly, we
remand to allow the trial court to exercise its discretion to strike defendant’s firearm
enhancements pursuant to section 12022.53.
V
Defendant’s Prior Conviction
Defendant, in pro. per., filed a motion under Romero, supra, 13 Cal.4th 497, to
strike his prior felony conviction for assault with a firearm when he was 14 years old.
(§ 245, subd. (a)(2).) Defendant argues the trial court abused its discretion in denying the
motion.
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A. Background
In considering defendant’s motion, the trial court noted defendant was “just over
14” and the juvenile court originally found defendant fit for juvenile court. However, the
juvenile court later found defendant unfit as part of the plea agreement, which was how it
became an adult conviction. The court stated: “It does look strange but it required a plea
deal that was negotiated by the People, the district attorney, and your attorney. You had
legal representation throughout the entire process.”4 The court noted its familiarity with
the public defender who represented defendant and whom he considered very
experienced.
The court explained its reasoning in denying defendant’s Romero motion: “I
reviewed the Romero motion that we were just discussing relating to the circumstances of
the strike prior, and I’ve taken all of that into account. I’ve also looked at the purposes
behind the three strikes scheme laid out in the rules of the court. [¶] I have decided that I
am going to deny the Romero motion. I want to go over some factors in terms of why I
decided what I did. [¶] . . . I’m allowed to consider [that] . . . the current offense is a
violent felony. [¶] . . . [T]he facts of this case and the circumstances indicate a . . .
greater danger to society given the fact that a gun was used. [¶] The defendant was
convicted in this case of multiple counts. A weapon was involved. There were no, as far
as the Court’s aware, there were no physical injuries to . . . any of the victims in the
case. Nonetheless . . . the . . . victims appeared to have suffered psychological harm as a
result. There was a financial loss to the [the bank]. [¶] . . . [¶] . . . Now the defendant,
Mr. Aguirre, has a criminal record going back to even when he was a minor. The Court
4 The juvenile court, in its fitness determination, stated: “I find this to be a close case. I
think that it’s a case about which people can disagree. It’s a case in which I certainly
would not be critical of anyone if they found that the minor was not a fit and proper
subject to be dealt with under the juvenile court law.”
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sustained and found true a strike prior. [¶] So given all of those factors and recognizing
again I understand the argument he made regarding that strike prior, but I find given the
nature and circumstances of the present felonies, that he was convicted of his prior
convictions, his background, character, prospects, the defendant has been in and out of
custody now for a number of times over the last 15, 20 years, I think that it would be hard
for me to deem him to fall outside of the spirit, not to mention the letter, of the three
strikes sentencing law . . . to justify striking the strike.”
B. Discussion
Defendant presents two arguments in support of remand on the Romero issue.
First, defendant argues the trial court abused its discretion by refusing to strike his prior
single strike conviction, which arose from conduct when he was 14 years old. Second,
defendant argues under the “full sentencing rule,” if his case is remanded for resentencing
the trial court should also consider his Romero motion. The People agree remand is
appropriate under the latter argument. We agree.
In People v. Garner (2016) 244 Cal.App.4th 1113, we held that, when a case is
remanded for resentencing by the Court of Appeal, the trial court is entitled to consider
the entire sentencing scheme. The court is not limited to merely striking the illegal
portions, but may reconsider all sentencing choices. We found such a result justified
because an aggregate prison term is not a series of separate terms, but one term made up
of interdependent components. Therefore, the invalidity of one component infects the
overall scheme. (Id. at p. 1118; People v. Buycks (2018) 5 Cal.5th 857, 893 [citing
Garner].)
Since we remand for resentencing on other grounds, we authorize defendant to
renew his Romero motion.
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VI
Supplemental Briefing
In supplemental briefing, defendant requests remand for the trial court to exercise
its discretion to strike or dismiss the five-year serious felony prior enhancement under
amended section 667, subdivision (a). The trial court imposed a consecutive term of five
years for the prior serious felony enhancement. Again, the People agree remand is
appropriate.
Section 667, subdivision (a)(1), provides a five-year enhancement for a prior
serious felony conviction when a defendant is currently convicted of a serious felony.
Under prior law, the trial court had no discretion to strike an enhancement under the
statute. Former section 1385, subdivision (b) stated: “This section does not authorize a
judge to strike any prior conviction of a serious felony for purposes of enhancement of a
sentence under Section 667.” In September 2018 the law changed, ending the limitation
on sentencing discretion by removing subdivision (b), effective January 1, 2019. (See
Stats. 2018, ch. 1013, §§ 1, 2.)
The parties agree the amendment is retroactive under In re Estrada (1965)
63 Cal.2d 740. Remand for resentencing is not required if the record shows a trial court
clearly indicated at the original sentencing it would not have stricken the enhancement
even if it possessed the discretion. “The trial court need not have specifically stated at
sentencing it would not strike the enhancement if it had the discretion to do so. Rather
we review the trial court’s statements and sentencing decisions to infer what its intent
would have been.” (People v. Jones (2019) 32 Cal.App.5th 267, 273.)
Defendant argues there is no evidence in the record establishing that the trial court
would not have exercised its discretion to strike the five-year prior serious felony
enhancement if it had the discretion to do so at the time defendant was sentenced. The
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People do not dispute this gloss on the evidence. Accordingly, we remand for the trial
court to exercise its discretion to strike the five-year prior serious felony enhancement.
DISPOSITION
We remand to allow the trial court to consider exercising its sentencing discretion
under section 12022.53, subdivision (h), and section 667, subdivision (a). Since we
remand for resentencing on other grounds, we authorize defendant to renew his Romero
motion. If appropriate, the trial court is directed to prepare an amended abstract of
judgment and forward a certified copy to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
/s/
RAYE, P. J.
We concur:
/s/
ROBIE, J.
/s/
MAURO, J.
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