Opinion
F079828
02-20-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY AGUILAR, JR., Defendant and Appellant.
Stephen Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F09903920)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Jane Cardoza, Judge. Stephen Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Snauffer, J.
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STATEMENT OF APPEALABILITY
As an appeal from a post-judgment order affecting appellant/defendant Johnny Aguilar, Jr.'s substantial rights, this proceeding is authorized by Penal Code section 1237, subdivision (b) and California Rules of Court, rule 8.304(a). (See Teal v. Superior Court (2014) 60 Cal.4th 595, 601.)
Unlabeled statutory references are to the Penal Code.
STATEMENT OF THE CASE
In the early morning hours of July 2, 2009, Mary Bustamonte's body was found in the burned remains of the motel room where she had been living. She had suffered burns to 85 percent of her body, and firefighters initially believed she had been the victim of an accidental fire. However, the autopsy revealed that she was a homicide victim. She had not died from the fire or smoke inhalation, but had suffered blunt force trauma to her head and internal neck injuries consistent with strangulation. Her blood was found on the shower curtain in the motel room's bathroom.
Aguilar had been staying with Bustamonte in the motel room. When another resident noticed smoke emerging from Bustamonte's motel room, Aguilar was walking away from the room and asked the resident if he had a cell phone so Aguilar could call 911. The resident said "no" but directed Aguilar to the motel's pay phone, where Aguilar was later seen holding the receiver. As firefighters arrived at the scene, the motel's manager briefly spoke with Aguilar and asked him whether Bustamonte was still in her room. Aguilar replied: " 'She was a few minutes ago,' " and added: " 'That's what karma gets you.' "
At trial, Aguilar's mother testified that Aguilar arrived at her house. He was sad, crying, and emotional, and said: " 'I killed somebody.' " Aguilar's sister testified that he told her that he killed Bustamonte because she was a snitch, and that he strangled her with the shower curtain, kicked her in the head, and started the fire to make it appear as if she had fallen asleep while smoking.
By felony complaint No. F09903920 filed July 8, 2009, the Fresno County District Attorney charged Aguilar with Bustamonte's murder (§ 187, subd. (a)) and arson of inhabited property (§ 451, subd. (b)).
On November 3, 2010, after a lengthy jury trial, Aguilar was convicted of count I, second degree murder (§ 187, subd. (a)), and count II, arson of an inhabited structure (§ 451, subd. (b)). He admitted one prior strike, based on a juvenile adjudication. Aguilar was sentenced to 15 years to life for second degree murder, doubled to 30 years to life; plus a consecutive determinate term of eight years, doubled to 16 years for arson.
Aguilar appealed from that judgment, which this court affirmed in a 73-page unpublished opinion. (People v. Aguilar (Jan. 29, 2013, F061462 [nonpub. opn.].)
The court granted Aguilar's motion for judicial notice of the file in case No. F061462.
On January 7, 2019, Aguilar filed in the superior court a petition for resentencing under newly enacted section 1170.95, noting he was only challenging the judgment in this case (No. F09903920). Aguilar alleged the following: (1) the underlying complaint or information had "allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine"; (2) he "was convicted of 1st or 2nd [degree] murder pursuant to the felony murder rule or the natural and probable consequences doctrine"; and (3) he "could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019."
Enacted in 2018 (Stats. 2018, ch. 1015), and effective January 1, 2019, Senate Bill No. 1437 made substantial revisions to section 189, as well as malice-defining section 188. Most significantly, for purposes of this appeal, "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) And under section 1170.95, a "person convicted of felony murder or murder under a natural and probable consequences theory" may petition the superior court to vacate that judgment if, under the amended murder statutes discussed above, he or she could no longer be convicted of murder. (§ 1170.95, subd. (a).)
On March 7, 2019, the District Attorney filed a motion to dismiss the petition, arguing Senate Bill No. 1437's unconstitutionality (see fn. 4, below), along with a substantive opposition contending the new law was inapplicable to Aguilar.
Given the original trial judge's retirement, on March 19, 2019, the matter was assigned to the Honorable Jane Cardoza, who appointed the Public Defender to represent Aguilar.
On August 19, 2019, the court held a hearing on Aguilar's petition. Defense counsel noted that after reviewing trial materials including written and oral jury instructions and closing arguments, as well as this court's opinion on direct appeal (F061462), he submitted no reply briefing because "the Court did not instruct on felony murder grounds or did not instruct on natural and probable consequences based on the commission of some other felony."
The People also argued that Senate Bill No. 1437 is unconstitutional. Although Senate Bill No. 1437 (§ 1170.95) has been upheld as constitutional elsewhere (see People v. Lamoureux (2019) 42 Cal.App.5th 241 and People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, petn. for review pending, petn. filed Dec. 23, 2019), we need not reach that issue, as Aguilar is clearly statutorily ineligible for relief under the law. --------
The court, relying on the same materials as well as the parties' requested jury instructions, found Aguilar had failed to present a prima facie case for section 1170.95 relief:
"[T]he jury was not instructed on the theory of felony murder or on the theory of aiding and abetting or on the natural and probable consequences. Neither party made a request for those instructions. In addition, a review of the closing arguments, neither counsel argued these theories of murder to the jury. So, accordingly, this Court finds that the petitioner has failed to make a prima facie showing that he falls within the provisions of Penal Code section 1170.95. Accordingly, his Petition for Resentencing is denied."
On August 20, 2019, Aguilar filed a notice of appeal.
Aguilar concedes that the instant appeal is from a resentencing denial, not from the original judgment. As to the facts supporting that judgment (F061462), the court has reviewed the procedural and factual history at length. From that opinion's Introduction: "On appeal, defendant's primary issue is that his trial attorney was prejudicially ineffective for failing to file pretrial motions and raise hearsay objections to the expected trial testimony of his mother and sister." ... "Defendant further contends the court should have modified CALCRIM No. 358, as to the jury's consideration of defendant's extrajudicial statements; or, in the alternative, that defense counsel was ineffective for failing to request modification of the instruction. Defendant also contends that the court should have excluded alleged implied hearsay testimony from the investigating officer regarding an aspect of his investigation. Defendant contends his convictions must be reversed for cumulative error, and also challenges his sentence, and the use of a prior juvenile adjudication as a strike."
The issues presented in the prior appeal from the judgment have no bearing on the questions presented by Senate Bill No. 1437 and section 1170.95. As Aguilar concedes, the trial court gave no instructions on aiding and abetting a felony murder.
APPELLATE COURT REVIEW
Aguilar's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating Aguilar was advised he could file his own brief with this court. By letter on November 5, 2019, we invited Aguilar to submit additional briefing. To date, he has not done so.
Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.