People v. Aguirre CA2/8 ( 2020 )

Filed 11/24/20 P. v. Aguirre CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B302007
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA457395)
v.
MANNY DANIEL AGUIRRE,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los
Angeles County. William N. Sterling, Judge. Affirmed and
remanded with directions.
Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Deputy Attorney General, Jaime L. Fuster and
Joseph P. Lee, Deputy Attorneys General, for Plaintiff and
Respondent.
**********
Defendant and appellant Manny Daniel Aguirre was
convicted of second degree murder and being a felon in possession
of a firearm and sentenced to 40 years to life in prison. The sole
issue presented is whether defendant’s trial counsel was
ineffective for failing to move for the suppression of his pretrial
statement to an undercover agent.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with one count of murder (Pen.
Code, § 187, subd. (a); count 1) and one count of being a felon in
possession of a firearm (§ 29800, subd. (a)(1); count 3). (Due to
pleading errors, the original count 2 possession charge was
realleged as count 3 and count 2 was dismissed.) Firearm use
allegations were alleged in connection with count 1 (§ 12022.53,
subds. (b)-(d)). A 2013 conviction for attempted first degree
burglary was alleged as a strike prior and as a prior serious
felony (§ 667, subds. (a)(1), (b)-(j), § 1170.12).
The charges arose from the fatal shooting of defendant’s
brother-in-law after a quarrel at the family home. Defendant
lived with his wife, America, in the front house of a duplex with
their four children. America’s two brothers, Francisco and
Abraham, and her parents lived in the back house. (Because of
the common surname, we refer to the brothers by their first
names for clarity.)
On the evening of April 10, 2017, defendant got into a loud
verbal argument with Francisco and Abraham. They were
cursing and calling each other names. The three men walked
down the sidewalk away from the family home, still arguing.
Moments later, America heard a loud popping sound. She walked
down the street a short distance and found Francisco lying on his
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back, bleeding. Paramedics arrived and attempted to treat
Francisco but he was pronounced dead that evening.
Defendant never returned home after this. Defendant was
on parole and had been wearing an ankle monitor, which was cut
off that evening. It was later determined defendant had fled to
his father’s home in Mexico. Defendant’s sister arranged for their
father to have defendant turn himself in, and he was picked up
and taken into custody at the border on April 13, 2017.
On May 9, 2017, defendant was placed in a cell with an
undercover agent posing as a fellow detainee. Their conversation
was recorded. Defendant told the undercover agent he had been
arrested for a parole violation. A deputy interrupted the
conversation and told defendant he was going to be interviewed
by a homicide detective from the sheriff’s department. The
deputy said “you’re getting charged with fucking murder, dude.”
After the deputy walked away, the undercover agent said,
“they fucking just charged you with murder” and asked if
defendant knew he was going to be charged with murder.
Defendant responded, “I kinda knew . . . but, like, they don’t
really have nothing on me.” Defendant and the undercover agent
continued talking, and defendant said the incident occurred a
month earlier, he had a cell phone with him at the time but had
gotten rid of it, there was “[j]ust personal shit—some fool just
fucking getting on my nerves,” and he had asked someone to get
rid of the handgun because he had “just smoked this fool.”
Defendant also said it happened on the street right by his home.
Later in the conversation, defendant responded to a question
from the undercover agent about whether the other person had
pulled anything on him, saying “[h]e didn’t have nothing, fool.
He was just fucking running his mouth.”
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A felony complaint was filed over a week later on May 17,
2017. Trial by jury was in January 2019. Defendant’s recorded
statement to the undercover agent was played for the jury.
Defendant testified in his own defense and said Francisco was
shot accidentally. He said Francisco pulled the gun on him and
while they wrestled over it, the gun went off. Defendant said he
fled and asked someone to get rid of the gun for him because he
was scared.
The jury found defendant guilty of second degree murder,
of being a felon in possession of a firearm, and found true the
firearm use allegations. In a bifurcated bench trial, defendant
admitted his 2013 conviction for attempted first degree burglary.
At the sentencing hearing, the court denied defendant’s
motion for new trial. The court struck defendant’s 2013
conviction for purposes of the “Three Strikes” law and as a prior
serious felony pursuant to Penal Code section 667,
subdivision (a)(1), stating that 40 years was a fair sentence and
defendant should have the opportunity to earn parole. The court
sentenced defendant to prison for a term of 40 years to life
calculated as follows: 15 years to life on count 1 (second degree
murder), plus a consecutive term of 25 years to life for the
firearm use (§ 12022.53, subd. (d)); and a concurrent three-year
high term on count 3 (possession of firearm). The court imposed
and stayed sentence on the firearm use enhancements pursuant
to section 12022.53, subdivisions (b) and (c). The court awarded
defendant 923 actual days of presentence custody credits. The
court imposed various fines and fees and ordered victim
restitution in the amount of $9,070.
This appeal followed.
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DISCUSSION
Defendant contends his appointed trial counsel was
ineffective for failing to seek the suppression of his pretrial
statement to the undercover agent because it violated his Sixth
Amendment right to counsel. The contention lacks merit.
In Illinois v. Perkins (1990) 496 U.S. 292, 296 (Perkins), the
Supreme Court rejected the defendant’s argument that the Fifth
Amendment and Miranda v. Arizona (1966) 384 U.S. 436
required the suppression of his jailhouse statement to an
undercover agent. The court held that “[c]onversations between
suspects and undercover agents do not implicate the concerns
underlying Miranda,” explaining that the “essential ingredients
of a ‘police-dominated atmosphere’ and compulsion are not
present when an incarcerated person speaks freely to someone
whom he believes to be a fellow inmate.” (Perkins, at p. 296.)
Perkins further concluded that because no charges had
been filed against the defendant relating to the subject of his
conversation with the undercover agent before they spoke, there
was no Sixth Amendment violation of the right to counsel.
(Perkins, supra, 496 U.S. at p. 299.) Citing Massiah v. United
States (1964) 377 U.S. 201 and its progeny, Perkins reiterated it
is only “[a]fter charges have been filed, [that] the Sixth
Amendment prevents the government from interfering with the
accused’s right to counsel.” (Perkins, at p. 299.)
Defendant concedes no charges were filed against him for
the murder of Francisco when he spoke to the undercover agent.
Defendant’s statement to the undercover agent was on May 9,
2017, and charges were not filed against defendant until more
than a week later on May 17, 2017. Defendant nonetheless
argues we should find his right to counsel attached on May 9
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when a deputy interrupted his conversation with the jailhouse
informant to say he would be charged with murder. Defendant
contends the deputy’s statement and the undercover agent’s
response that “they . . . just charged you with murder” should be
treated as the functional equivalent of the formal filing of
charges. He cites no authority for this novel expansion of the
law.
At oral argument, defendant focused on this functional
equivalence argument, again without citation to authority. As we
explain, there is no legal merit to the argument. But the
argument is also weak factually. The deputy that interrupted
defendant’s conversation with the undercover agent told
defendant he was going to be charged with murder and was
therefore going to be speaking with a homicide detective. He did
not say defendant had been charged. Then, after the deputy
walked away, the undercover agent, who defendant believed to be
a fellow inmate, said “they fucking just charged you with
murder.” The impact on defendant of such a statement being
made by someone he believed was a fellow inmate is entirely
different than if it had come from a person of authority.
Defendant made his statements freely and was not under the
compulsion of a police-dominated interrogation.
“The Sixth Amendment right to counsel ‘does not attach
until a prosecution is commenced, that is, “ ‘at or after the
initiation of adversary judicial criminal proceedings—whether by
way of formal charge, preliminary hearing, indictment,
information, or arraignment.’ ” ’ [Citations.] It is not enough, for
example, that the defendant has become the focus of the
underlying criminal investigation.” (People v. Clair (1992)
2 Cal. 4th 629, 657.) This bright-line rule serves the purpose of
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the Sixth Amendment right to counsel which “becomes applicable
only when the government’s role shifts from investigation to
accusation. For it is only then that the assistance of one versed
in the ‘intricacies . . . of law,’ [citation], is needed to assure that
the prosecution’s case encounters ‘the crucible of meaningful
adversarial testing.’ ” (Moran v. Burbine (1986) 475 U.S. 412,
430, italics added.)
In order to prevail on his ineffective assistance claim,
defendant had to demonstrate “both that trial counsel failed to
act in a manner to be expected of reasonably competent attorneys
acting as diligent advocates, and that it is reasonably probable a
more favorable determination would have resulted in the absence
of counsel’s failings.” (People v. Cudjo (1993) 6 Cal. 4th 585, 623,
citing Strickland v. Washington (1984) 466 U.S. 668, 687-696.)
“ ‘ “Reviewing courts will reverse convictions [on direct appeal] on
the ground of inadequate counsel only if the record on appeal
affirmatively discloses that counsel had no rational tactical
purpose for [his or her] act or omission.” ’ ” (People v. Lucas
(1995) 12 Cal. 4th 415, 437.)
Defendant has not shown there is any merit to his claim his
pretrial statement should have been suppressed. “It is not
incumbent upon trial counsel to advance meritless arguments or
to undertake useless procedural challenges merely to create a
record impregnable to assault for claimed inadequacy of counsel.”
(People v. Shelburne (1980) 104 Cal. App. 3d 737, 744; accord,
People v. Saldana (1984) 157 Cal. App. 3d 443, 462.) His
ineffective assistance claim thus fails.
Finally, in reviewing the record, we find the abstract of
judgment contains a typographical error that must be corrected.
The abstract states that sentences were imposed and stayed
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pursuant to Penal Code section 12022.53, subdivisions (c) and (d),
when the stayed terms were pursuant to section 12022.53,
subdivisions (b) and (c). On remand, a corrected abstract of
judgment must be prepared and transmitted to the Department
of Corrections and Rehabilitation.
DISPOSITION
The judgment of conviction is affirmed.
On remand, the superior court is directed to prepare a new
abstract of judgment that correctly records the court’s oral
pronouncement of judgment as to the firearm use enhancements
on count 1, i.e., imposing a 25-years-to-life sentence pursuant to
Penal Code section 12022.53, subdivision (d), and imposing and
staying sentence under section 12022.53, subdivisions (b) and (c).
The court is further directed to transmit the corrected abstract of
judgment to the Department of Corrections and Rehabilitation.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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