Opinion
B228448
10-04-2011
THE PEOPLE, Plaintiff and Respondent, v. RAUL GILBERTO AGUILAR, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA341637)
APPEAL from a judgment of the Superior Court of Los Angeles County, Drew E. Edwards, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted defendant Raul Gilberto Aguilar of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), finding true that he inflicted great bodily injury (§ 12022.7, subd. (e)), and acquitted him of criminal threats (§ 422). The jury deadlocked on two counts, forcible oral copulation (§ 288a, subd. (c)(2)) and kidnapping (§ 207, subd. (a)), and the court declared a mistrial on those counts. A second jury convicted defendant of those charges, finding in the oral copulation count that he kidnapped the victim (§ 667.61, subds. (a), (b), & (e)) and that the movement substantially increased the risk of harm (§ 667.61, subds. (a) & (d)). Defendant was sentenced to a term of 25 years to life on the oral copulation count, and the terms on the remaining counts were stayed pursuant to section 654. He appeals from the judgment of conviction.
Further undesignated statutory references are to the Penal Code.
The jury found a great bodily injury allegation (§ 12022.7, subd. (e)) in the kidnapping count not true.
FACTUAL BACKGROUND
The Factual Background relies primarily on testimony from the second trial.
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The victim of defendant's crimes was his former girlfriend, R.S. On May 30, 2008, R.S. spent the evening with a friend, Luis. They sat talking in his car for three or four hours on R.S.'s street. R.S. then got out of the car and walked home. When she was a few steps from her home, defendant approached and punched her three times in the face. He said, among other things, that she was a "fucking bitch" and that he would kill the man she was with. He forced her into his car, drove her to his apartment, and pushed her up the stairs, threatening to kill her if she was going out with someone.
Defendant locked the door of his apartment behind them. He had written a list of questions on a pad of paper. He gave R.S. a blank piece and told her to answer his questions. He first asked the name and address of the person she had been with. When she did not write a response, he struck her and threatened to kill the man. He interrogated her further, punching her in the face when she did not answer.
Eventually defendant took R.S. to the bedroom and forced her to orally copulate him until he ejaculated. When she got up to clean off, she noticed that her hand was hurting. He later asked her to forgive him. They both fell asleep. Defendant kept her at his apartment until around 5:00 p.m. the following day, and then drove her home. Before leaving, he tore up the pages with his questions and threw them in the trash.
Because she was ashamed, R.S. did not contact the police until June 3, 2008. By that date, defendant had begun to contact her again. The police instructed her to go to County USC Hospital, which she did. She saw defendant there in the hallway and he was later arrested. Doctors applied a cast to her hand, which remained for two months.
In a search of defendant's apartment, police discovered in the trash the torn pieces of the pages containing defendant's questions for R.S. The pieces were reassembled and the words translated from Spanish to English. In the document, defendant complained that R.S. had not answered his calls, asked whom she was sleeping with, and said that she took him for an idiot.
Defense Evidence
At his first trial, defendant testified that he did not force R.S. to go to his apartment, and that although he struck her one time, he did not threaten to kill the man she was with. He also did not force her to orally copulate him.
Defendant did not testify at his second trial.
DISCUSSION
After review of the record, appellant's court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436, 441.
We advised defendant that he had 30 days within which to submit any contentions or issues that he wished us to consider. Defendant filed a brief in which he contends that he "never stood a chance to survive all the tainted accusations brought against him." He appears to challenge the sufficiency of the evidence to prove his guilt. However, viewing the entire record in the light most favorable to the judgment, and drawing all inferences in support, we conclude that substantial evidence supports the convictions. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Defendant also asserts that the prosecutor was biased against him. As we understand it, the basis of the claim is that the prosecutor sought a second trial after the first jury deadlocked on the kidnapping and oral copulation charges. However, following the declaration of a mistrial, a retrial on those charges was entirely proper. (People v. Schulz (1992) 5 Cal.App.4th 563, 568-569; § 1160.)
Defendant contends that his attorney was ineffective in his second trial, because when defendant expressed an inclination not to testify so as to avoid a confrontation with the prosecutor, the attorney said that it was "up to [defendant]" to decide whether to testify. He also contends that his attorney failed to conduct an adequate investigation and call relevant witnesses. Because these claims are based on matters outside the record, they must be rejected on appeal. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
MANELLA, J. SUZUKAWA, J.