Opinion
D075979
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. JULIO CESAR AGUILAR, SR., Defendant and Appellant.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Hennick, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD278555) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed as modified with directions. Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Hennick, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
Julio Cesar Aguilar, Sr. pleaded guilty to 13 felony offenses and two misdemeanors. The most serious offense was first degree burglary (Pen Code, § 459). Aguilar also admitted a prison prior (§ 667.5, subd. (b)); three serious felony priors (§ 667, subd. (a)(1)) and five prior "strike" convictions (§ 667, subds. (b)-(i)). There were no agreements as to sentence.
All further statutory references are to the Penal Code unless otherwise specified.
At sentencing, the court denied Aguilar's motion to strike the "strike" priors. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) Aguilar was sentenced to a determinate term of 26 years four months, consecutive to an indeterminate term of 25 years to life.
Aguilar contends, and the People agree that the one-year term for the prison prior is no longer valid in light of Senate Bill No. 136. We agree and will direct the trial court to strike the one-year enhancement.
Aguilar appeals, challenging only the validity of one fact statement in the prosecutor's presentation about an admission by Aguilar to police in 1997 that he was the "shooter" in the homicide case that led to Aguilar's conviction for manslaughter. Although the defense made no objection to the alleged statement, Aguilar now contends the court's acceptance of the statement as a consideration in its sentencing analysis was an abuse of discretion and requires a new sentencing hearing.
We will find the challenge to the prosecutor's statement has been forfeited by failure to timely raise a challenge in the trial court. In any event, Aguilar's lengthy, dismal, criminal history and current conviction of 15 new offenses, brings him squarely within the spirit of the "Three Strikes" law. (People v. Williams (1998) 17 Cal.4th 148.) We will affirm the judgment.
Respondent contends the change of plea form includes a waiver of appeal of strike issues; thus, Aguilar's appeal should be dismissed. We find the language of the waiver to be unclear regarding how it would apply in this case. We decline to treat the appeal as waived. We will address the merits. --------
STATEMENT OF THE FACTS
Since this appeal arises from guilty pleas and there has not been an evidentiary hearing regarding the facts of the current offenses, we will include the statement of facts from the probation officer's report.
On September 8, 2018, at approximately 2:14 a.m., officers responded to investigate a traffic collision on Shelter Island. Upon arrival, officers discovered the driver of a 2018 Chevrolet Suburban involved in the collision had fled the scene on foot. It was discovered the Suburban was an Avis Rental Car and driver's license of defendant, Aguilar, was found inside. Officers learned the vehicle had not yet been reported stolen, but the original renter of the vehicle was past due in returning the vehicle.
Aguilar ran from the scene of the accident and entered the Isabella yacht located at the Pearson Marine Fuel Dock in the 2400 block of Shelter Island Drive in San Diego. Aguilar entered the stateroom of Captain David Sims, while Mr. Sims was sleeping, and stole his wallet containing credit cards, car keys, and $80 cash. Aguilar stole Mr. Sims's 2007 Toyota Solara, which was parked nearby. Aguilar then proceeded to use Mr. Sims's personal and business credit cards to make purchase at 76 Gas, Carl's Jr., and 7-Eleven. A second purchase at 7-Eleven was declined. Video surveillance cameras captured Aguilar driving Mr. Sims's vehicle and using his credit cards at Carl's Jr. and 7-Eleven.
On September 9, 2018, at approximately 10:06 p.m., officers on patrol were flagged down by a male stating a car had followed him from an ATM. He was able to lose the vehicle and showed officers where it was now parked. Officers went to a parking lot in the 8600 of Aero Drive and observed a vehicle driving without the lights on. Officers contacted Aguilar, who was the driver and sole occupant of the vehicle. A records check revealed it was Mr. Sims's vehicle, which had been stolen the previous day. Aguilar was placed under arrest and declined to make a statement. A search of Aguilar revealed Mr. Sims's wallet containing Mr. Sims's credit cards and identification. Officers also recovered the key fob belonging to the Suburban. A search of the vehicle revealed a glass pipe with white residue.
On November 26, 2018, Aguilar was released from county jail on bail.
On December 13, 2018, at approximately 7:44 a.m., Aguilar stole a park ranger vehicle, a Ford pickup truck, while it was parked in the 1600 block of El Prado at Balboa Park in San Diego. The ranger confronted Aguilar while he was inside the vehicle and ordered him to stop. Aguilar did not comply and continued to drive away in the vehicle. Officers responded to the call and located the vehicle being driven by Aguilar at Park Boulevard and the 163 Freeway. Officers activated their overhead lights and initiated a traffic stop. However, Aguilar failed to yield, and pursuit ensued. Aguilar drove erratically from side to side, failed to stop at stop signs and red lights. Aguilar then stopped the vehicle and fled on foot. He was taken into custody after a short foot pursuit. Aguilar was positively identified by the ranger as the person that had stolen the truck.
DISCUSSION
A. Background
In 1996, Aguilar, an active gang member, and others chased rival gang members. Shots were fired and one of the rival members was killed. Aguilar was charged with murder and was alleged to have used a firearm under section 12022, subdivision (a)(1). He cooperated with authorities and was allowed to plead guilty to manslaughter with the use of a firearm. He received a suspended nine year prison sentence. In 2005, his probation was revoked, and he was sentenced to prison.
In 2007, Aguilar pleaded guilty to assault with a deadly weapon, again involving gang activity.
In the prosecution's statement in aggravation for the current sentencing, the prosecutor reported that Aguilar admitted to police that he was the "shooter" in the second case involving assault with a deadly weapon and other offenses. At sentencing, the trial court noted the probation report did not include Aguilar's alleged admission to being the shooter. There was no objection or rebuttal of the statement offered by the defense. The court accepted the prosecution's representation as demonstrating one of several instances of violence and use of a firearm by Aguilar in the past.
In 2005, Aguilar pleaded guilty to stalking and criminal threats and admitted a serious felony prior. He was sentenced to prison for a term of 12 years eight months.
Aguilar committed the latest set of offenses in 2018.
B. Legal Principles
Where a person seeks to challenge a trial court's sentencing decisions, the person must first object in the trial court, provided there was sufficient notice of the court's decision to provide a reasonable opportunity to object. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Kelley (1997) 52 Cal.App.4th 568, 582.) Here, Aguilar was aware of the prosecution's position that he was the shooter in the assault case. The defense was present when the court inquired about the discrepancy between the statement in aggravation and the probation officer's report. There was no challenge to the statement at the sentencing hearing. Nor was there a claim the statement was incorrect or that it should not be considered. Aguilar cannot now be heard to raise factual issues, which could have been addressed in the trial court. We find the challenge to the statement to be forfeited.
If we consider the challenge, we must do so in light of the entire record and the trial court's exercise of discretion. Trial courts have broad discretion in making sentencing choices within the range of possible outcomes. We review those choices for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-375; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979-980.)
Where there is a claim of error as to the court's exercise of discretion, we will not set aside the trial court's decision without a demonstrable showing of prejudice. (People v. Tang (1997) 54 Cal.App.4th 669, 678.)
C. Analysis
We have previously determined that Aguilar forfeited his challenge to the validity and the use of the prosecutor's representation that Aguilar was not merely in possession of a firearm but that he fired shots during the events in the assault case. Even if we considered the claim, there is no conceivable prejudice on this record. Aguilar had been involved in a gang crime leading to homicide. Because he cooperated with authorities, he was allowed to plead to a lesser homicide and received a suspended sentence, which was later revoked. In the assault case, he was armed, does not deny he was the shooter, but merely argues the court should not have considered the purported admission.
Aguilar later engaged in criminal threats and stalking for which he was also sentenced to prison. Given his lengthy involvement in violent gang activity, possession of firearms and violence, any reasonable trial judge could find Aguilar to be a violent and dangerous person.
He has argued his strike priors are remote, starting in 1997, but he continued to commit crimes in the interim. Indeed, he had not been out of prison long when he committed 13 new felonies and two new misdemeanors.
A person with multiple prior convictions including five strikes, three serious felony priors and a prison term, appearing for sentencing for 15 new offenses, can easily be said to come squarely within the spirit of the Three Strikes law as explained in People v. Williams, supra, 17 Cal.4th at page 161. There is nothing in the record to demonstrate an abuse of discretion in the trial judge's sentencing choices.
DISPOSITION
The trial court is directed to strike the enhancement under section 667.5, subdivision (b) and modify the sentence accordingly. The court is directed to amend the abstract of judgment to reflect the modified sentence and forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.