People v. Aguero CA6 ( 2024 )

Filed 5/24/24 P. v. Aguero CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048899
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 18CR008100)
v.
HECTOR AGUERO,
Defendant and Appellant.
In re HECTOR AGUERO, H051316
on Habeas Corpus.
Appellant Hector Aguero was convicted by a jury of the second degree murder
(Pen. Code, § 187, subd. (a))1 of his infant son, Hector, Jr.,2 as well as felony child abuse
(§ 273a, subd. (a)), and felony assault on a child causing death (§ 273ab, subd. (a)). The
trial court sentenced him to an aggregate term of 36 years to life.
On appeal, Aguero raises the following claims of error: (1) the trial court erred by
admitting evidence of uncharged domestic violence offenses and by failing to instruct the
1
Unspecified statutory references are to the Penal Code.
The parties referred to the child as “Baby Hector” throughout the trial to
2
distinguish him from Aguero. The jury instructions referred to him as “Hector Aguero
III.”
jury on the use of evidence of uncharged offenses; (2) the prosecutor committed error by
referring to evidence outside the record, vouching for one of its witnesses, and
commenting on Aguero’s exercise of his constitutional right not to testify;3 and (3) the
cumulative effect of these errors warrants reversal. Finally, Aguero argues that the
matter must be remanded for resentencing so that the trial court may exercise its
discretion under recently amended section 654.
We reject Aguero’s substantive arguments in their entirety, but we agree Aguero is
entitled to resentencing under the amended version of section 654 and will therefore
reverse the judgment and remand for that limited purpose.4
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Charges, verdict, and sentencing
On July 23, 2019, the Monterey County District Attorney filed an information
charging Aguero with two counts of felony child abuse (§ 273a, subd. (a); counts 1, 4),5
felony assault on a child causing death (§ 273ab, subd. (a); count 2), and second degree
3
Aguero also argues that he received ineffective assistance of counsel in relation
to each of these claims. We address and reject on the merits his claim that there was
prosecutorial error, and thus we need not and do not address the ineffective assistance
argument related to that claim. However, we consider and reject his claim that counsel
was ineffective for failing to: (1) request limiting instructions related to the evidence of
uncharged domestic violence offenses; and (2) seek to admit additional portions of his
interview with police in which he accused his former codefendant, Michelle Bautista La
Fuente, of committing domestic abuse against him and their son.
4
After briefing in Aguero’s direct appeal was completed and oral argument
scheduled, he filed a petition for writ of habeas corpus (H051316) that this court ordered
to be considered with his appeal. We addressed the habeas petition by separate
order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
5
Count 1 was based on child abuse that occurred “[o]n or between July 25, 2018
and July 28, 2018[,]” and count 4 was based on child abuse that occurred “[o]n or about
August 7, 2018[.]” The prosecutor, in his trial brief, indicated that he intended to dismiss
count 4 at the outset of trial. Although the record does not contain an order of dismissal,
the charge was not presented to the jury.
2
murder (§ 187, subd. (a); count 3).6 The information further alleged that, in connection
with count 1, Aguero inflicted great bodily injury (GBI) on the victim, who was under
five years of age (§ 12022.7, subd. (d)).
On October 30, 2020, the jury found Aguero guilty on counts 1 through 3 and
found true the GBI enhancement allegations.
The trial court sentenced Aguero to an aggregate term of 36 years to life,
consisting of an indeterminate term of 25 years to life on count 2, consecutive to the
upper term of six years on count 1 plus five years for the associated GBI enhancement.
The trial court imposed, but stayed pursuant to section 654, a term of fifteen years to life
on count 3.
Aguero timely appealed.
B. Factual background
1. Prosecution’s case
a. Events prior to July 27, 2018 hospital visit
Aguero began dating La Fuente in July 2016. About six months after they began
dating, Aguero and La Fuente would argue “[t]hree to five days out of the week[]” and,
during those arguments, Aguero would “hit [La Fuente] in anger.” La Fuente stayed with
6
Aguero’s former codefendant, La Fuente, was also charged in the information on
counts 2 (felony assault on a child causing death, § 273ab, subd. (a)) and 4 (felony child
abuse, § 273a, subd. (a)). Before trial, La Fuente entered into a plea agreement whereby
she pleaded to a misdemeanor charge of child abuse (§ 273a, subd. (b)) and being an
accessory to a felony (§ 32). At Aguero’s trial, La Fuente’s plea bargain was introduced
by stipulation of the parties.
On February 10, 2023, the Attorney General filed a request for judicial notice,
requesting that the court take judicial notice of the June 26, 2019 minute order following
the preliminary hearing at which the trial court found the evidence was not sufficient to
support a charge of implied malice murder against La Fuente. By separate order, we
deferred the request for judicial notice for consideration with the appeal. Having
considered the documents, we deny the request as irrelevant to our resolution of the issue
on appeal.
3
Aguero and did not report him to the police despite his physical abuse because she loved
him and “believe[d] his promises” that he would stop.
For a short period of time, Aguero did stop hitting La Fuente once she and Aguero
had a child together, Hector, Jr., on January 20, 2018.7 In March, however, Aguero got
angry at La Fuente and hit her in the jaw. La Fuente went to the emergency room
because of the pain but, to protect Aguero, told hospital staff that she fell in the bathtub.
Aguero accompanied La Fuente to the hospital that day because he had injured his hand.
Medical personnel put a cast on his hand which prevented Aguero from being able to
work. As he recuperated, Aguero stayed home with Hector Jr. while La Fuente was at
work.
In April, La Fuente was alone with Hector Jr. when he rolled off the couch onto
the floor. Although La Fuente did not see any bruises or bumps, she took him to the
hospital as a precaution. The doctors who examined him told her Hector Jr. was fine but
she could give him a pain reliever if necessary.
On separate occasions in either April or May, after leaving Hector Jr. with Aguero,
La Fuente noticed bruising on Hector Jr.’s left cheekbone and left jaw. After La Fuente
observed the second bruise, she asked her sister-in-law, A.M.,8 to watch Hector Jr. when
La Fuente had to work. When A.M. started babysitting Hector Jr. in early May, she took
photographs of the bruising on his face.9
La Fuente testified that she and Aguero were not living together in April, May,
and June. Aguero would call and visit La Fuente however and express his concern for
her and Hector Jr. He would make sure that Hector Jr. had diapers, formula, and other
7
Unless otherwise stated, all date references are to 2018.
8
We will protect the personal privacy interests of the witnesses by referring to
them by their initials only. (Cal. Rules of Court, rule 8.90(b)(10).)
9
A.M.’s photos were entered into evidence and displayed to the jury.
4
necessities. La Fuente reconciled with Aguero and they began cohabitating again in mid-
July. Aguero also resumed caring for Hector Jr. by himself when La Fuente was at work.
b. July 27 hospital visit (count 1)
On July 27, La Fuente returned from work between 2:30 p.m. and 3:00 p.m. She
hugged Hector Jr., but when she touched the back of his head, he cried in pain. La
Fuente could feel a bump, about as large as the palm of her hand, on the back of Hector
Jr.’s head. La Fuente called her coworker, G.R., to give her and Hector Jr. a ride to the
hospital. Aguero initially did not want to go to the hospital, but La Fuente told him he
needed to explain what happened since he was the only person at home with the child.
La Fuente’s coworker testified that Aguero did not want to go to the hospital with La
Fuente and Hector Jr. and, before he relented and got in her car, he appeared “kind of
nervous.”
On the way to the hospital, La Fuente’s coworker asked Aguero what happened
and, according to La Fuente, Aguero did not reply but just laughed. The coworker
testified that Aguero responded that Hector Jr. was playing and he fell backwards, hitting
his head. The coworker asked how he fell and Aguero said “just like that, like back” and
then Aguero “kind of … laughed.”
After they arrived at the emergency room, Aguero told La Fuente that Hector Jr.
fell backwards and hit his head on a toy.10 At the hospital, doctors observed a bruise on
the left rear side of Hector Jr.’s scalp and discharged him, without conducting any
internal scans of his head, instructing La Fuente to ice the bruise and provide pain
relievers as needed. La Fuente was directed to return if Hector Jr. began vomiting or she
observed changes in his behavior.
10
When they returned from the hospital, Aguero showed La Fuente the toy he
claimed Hector Jr. fell on, and a photograph of that toy was entered into evidence.
5
On the evening of August 6, La Fuente and Aguero were both at home with Hector
Jr. As they were sitting on the floor, Hector Jr. fell backwards and hit his head against a
partially eaten melon that was on the carpet. The impact was to the same part of his head
that had previously been injured, and Hector Jr. began crying. La Fuente was able to
console Hector Jr. and did not notice any swelling where he hit his head.
c. August 7 hospital visit (counts 2, 3)
On the morning of August 7, before leaving for work, La Fuente fed Hector Jr. and
put him in bed next to Aguero who was still sleeping. G.R. drove La Fuente to work.11
Aguero and La Fuente shared a cell phone, so La Fuente left it at home with him while
she was at work.
While at work, G.R. received a call from La Fuente’s phone, so she handed her
phone to La Fuente. When La Fuente answered the phone, Aguero told her she needed to
come home because Hector Jr. was going to the hospital, then Aguero hung up. La
Fuente called Aguero back multiple times before he answered. Aguero told her that
Hector Jr. “was on the way to the hospital, and that he had … woken up crying.” Aguero
said he tried to calm Hector Jr. and feed him. According to La Fuente, Aguero said that
he turned on the television, changed Hector Jr.’s diaper, but “all of a sudden [Hector Jr.]
fainted in his arms.” La Fuente had G.R. drive her to the hospital.
The ambulance arrived at the family’s home at 9:52 a.m. A responding paramedic
noted that Hector Jr. was pale, bleeding from his nostrils,12 and his lips were blue. He
11
La Fuente testified that G.R. picked her up between 7:30 a.m. and 8:00 a.m. that
morning, but G.R. testified that they arrived at work at “six or seven” a.m. On cross-
examination, La Fuente said that her work hours were from “seven to three in the
afternoon.”
The paramedic did not observe any trauma to Hector Jr.’s face or nose that
12
would explain the bleeding.
6
had no pulse and was not breathing. The paramedics began chest compressions, gave
him oxygen, and transported him to the hospital.
When Hector Jr. came into the emergency room, he was not breathing and had no
pulse. Hospital staff were able to restore his vital signs after several minutes, but it took
two hours before his pulse and breathing were stabilized. Hector Jr. showed no
neurologic activity, so the emergency room physician ordered a CT scan of his brain. A
full examination of Hector Jr.’s body did not reveal any swelling or marks on his scalp,
but there was “fairly extensive bruising over the lower back, buttocks[,] and upper legs.”
After Hector Jr. was stabilized, he was transferred to Lucille Packard Children’s Hospital
(Children’s Hospital) at Stanford for more specialized treatment. Because of the nature
of Hector Jr.’s injuries, hospital staff suspected they were non-accidental and contacted
local law enforcement and child protective services (CPS).
The radiologist who reviewed Hector Jr.’s CT scans testified that there appeared to
be bleeding in the brain that had either “happened before and didn’t quite stop” or “it
could be a repetitive injury that bled, … or something that bled and then stopped and then
bled again.” The radiologist observed a “fracture along the left parietal bone” on the
“side back of the head.” Finally, the radiologist noted that the CT imaging appeared to
show more white than grey matter in Hector Jr.’s brain, indicating brain cells were dying
from lack of oxygen, though it was difficult to tell.
Dr. Kelly Mahaney, a pediatric neurosurgeon, performed the initial neurological
evaluation of Hector Jr. upon his arrival at Children’s Hospital. She observed bruising on
his thighs and buttocks and swelling and “bogginess” on the left rear of his scalp. Hector
Jr. was comatose and on a ventilator. Dr. Mahaney administered a brainstem exam,
looking for responses to various stimuli, but Hector Jr. showed no brainstem activity in
that exam. She reviewed the CT scans performed at the hospital in Salinas and observed
bilateral hemorrhages as well as loss of differentiation in gray and white cells in addition
7
to a skull fracture. In Dr. Mahaney’s experience, she had never seen “that significant of
bruising and that significant of evidence of head injury from an accidental fall in a child
this age.” After her initial assessment, Dr. Mahaney requested a non-accidental trauma
workup for Hector Jr. Dr. Mahaney explained that, in her work, they “do see cases where
infants … come [in] with a skull fracture … [which] could result from … falling from a
bed three or four … maybe three feet high. [¶] However it would be extremely rare to
see a skull fracture in a comatose patient and with other signs of external trauma and to
have that be simply from a fall from a bed.”
On August 8, pediatric ophthalmologist Dr. Euna Koo examined Hector Jr.’s eyes.
Hector Jr.’s eyes were mid-dilated, which indicated he had suffered brain damage. Dr.
Kuo dilated Hector Jr.’s eyes further and discovered multiple hemorrhages—“too many”
for her to count—and large macular schisis13 cavities in both eyes. The only plausible
explanation for these injuries, in Dr. Kuo’s experience, was non-accidental trauma. The
macular schisis cavities were consistent with Hector Jr. being repeatedly moved
“forward-backward, forward-backward” with “quite a bit of force to create basically
whiplash inside the eye.” Dr. Kuo was not confident in trying to place a time frame
within which the injuries were inflicted beyond “at least a day or even a week” prior.
On August 11, following a second14 brain death exam, Hector Jr. was declared
dead.
d. Autopsy results
Dr. Venus Azar, a pathologist, performed the autopsy and noted that Hector Jr.
had a large bruise on his buttocks which extended to his upper thighs, and a smaller
13
According to Dr. Kuo, a schisis is a separation between layers of the retina.
Another physician testified that, “to declare somebody as brain dead, they must
14
have two separate brain death exams performed by two separate practitioners at least 12
hours apart.” Dr. Mahaney performed the first brain death exam of Hector Jr. on August
10 and determined he was brain dead.
8
bruise on his back. Hector Jr. had a two-inch by one-inch bruise on the left rear side of
his scalp and two more bruises on the middle part of his scalp, one towards the top of his
head and the other lower down. Dr. Azar also discovered two skull fractures, both on the
left side. One of the fractures was close to the base of the skull. According to Dr. Azar, a
fracture near the base of the skull may damage the vessels that supply blood to the brain
and the brainstem itself, which “controls respiration … blood pressure … [and] heart
rate.” The other fracture showed signs of healing which indicated it occurred before
August 7 and thus was consistent with the injury that Hector Jr. had suffered on July 27.
Inside the skull, Dr. Azar observed bleeding on both sides of the front of Hector
Jr.’s brain although there was no evidence of any blunt force trauma to the front of his
head. Dr. Azar explained that such bleeding could be caused by a blow to the back of the
head causing the brain to move within the skull and tear blood vessels, or by violent
shaking. There were two areas of bleeding in Hector Jr.’s skull, one of which was
approximately two weeks old and the other which was at most a few days old.
Dr. Azar opined that Hector Jr. died from “blunt force trauma and probably violent
shaking.” The injuries were inconsistent with a child falling backwards from a seated
position onto the toy as described by Aguero or from a child again falling backwards
from a seated position onto a partially eaten melon. According to Dr. Azar, the “manner
of death” was homicide “because the injuries are classic for nonaccidental trauma or
inflicted head trauma.”
e. Aguero’s pre-arrest interview
When Aguero arrived at Children’s Hospital, a CPS social worker met with him.
Aguero agreed to an interview in a private room at the hospital. Aguero told the social
worker that La Fuente had watched Hector Jr. the night before, but he was watching him
the morning of August 7. Aguero said that he changed Hector Jr.’s diaper and fed him
but the baby was crying. When asked about Hector Jr.’s head injuries, Aguero said he
9
did not know but the baby “had fallen on … a toy and hit the back of his head.” Aguero
said that the bruising on Hector Jr.’s buttocks might have happened during the ride in the
ambulance to the hospital.
Salinas Police Detective Ciro Barboza arrived at Children’s Hospital between 8:00
p.m. and 9:00 p.m. on August 7. Barboza saw “large bruises” on Hector Jr.’s “back,
lower back, buttocks, and behind the legs” and was “shocked … to see that much
bruising on the baby.” According to Barboza, the bruises on Hector Jr.’s buttocks were
“larger and darker” than what was depicted in the photographs taken by a social worker
at the hospital in Salinas that morning.
Barboza and another officer interviewed Aguero at Children’s Hospital that same
night. Aguero said he was taking care of Hector Jr. that morning. La Fuente had left for
work without waking him, and he woke up when he heard Hector Jr. crying. Aguero
changed his diaper but did not see any bruises on the baby. Hector Jr. continued to cry,
so Aguero tried to feed him and turned on the television. The baby was still restless but
suddenly “stayed really calm” with his eyes open. Aguero asked what was wrong and
noticed Hector Jr. was struggling to breathe and sticking out his tongue. Aguero went to
his parents’ room, told them Hector Jr. could not breathe, and they called 911.
Aguero later told the police that the night before, Hector Jr. had fallen backwards
and hit his head. Aguero did not see it happen, but La Fuente told him the baby hit his
head on the rind of a melon Aguero had been eating.
Aguero admitted that he would sometimes get frustrated when Hector Jr. cried, but
he never hit him or hurt him. He also denied ever hitting La Fuente—aside from the time
in March that he tried to hit her but hit a wall instead, breaking two fingers.
f. La Fuente’s prearrest interview
Detective Barboza also interviewed La Fuente on August 7. Barboza recalled that
La Fuente mentioned that she had seen Aguero get frustrated and impatient with Hector
10
Jr. when he cried. La Fuente told Barboza that she had seen bruises on Hector Jr.’s face
in April and May when Aguero had been caring for him. La Fuente also told Barboza
that she had been a victim of domestic violence from Aguero, but they did not go into
detail on that subject during that interview.
During her videorecorded interview, La Fuente admitted spanking Hector Jr. “two
days” prior to August 7. La Fuente demonstrated for the officers how hard she spanked
him, and at trial described the contact as “little taps.”15 She then explained to the
officers, “why am I gonna spank him if it’s normal for them to cry? It’s not —
something could be, um, it’s same thing that something could be hurting him. Why am I
hitting him? For him to shut up? For him to, you know what, ‘Oh, don’t cry no more.’?
I know that he’s — he’s barely learning about life so why am I gonna do something
wrong with my baby?”
g. Aguero’s arrest and in custody interview
On August 24, 2018, the police arrested Aguero.
In a recorded interview after his arrest, Aguero initially continued to deny
knowing how Hector Jr. was injured. Eventually, Aguero said that he was carrying
Hector Jr. that morning and was still half asleep. He was looking for the baby’s bottle,
stumbled, and dropped Hector Jr. The baby hit his head on the floor,16 but Aguero again
denied that he hit him. After further questioning, Aguero admitted that he hit Hector Jr.
three or four times, because he got frustrated that the baby would not stop crying.
Aguero explained the baby would not stop crying that morning and cried more after
Aguero dropped him. Aguero got exasperated and hit him with an open hand “very
hard.”
This portion of La Fuente’s interview was played in court so the jurors directly
15
observed her demonstration of how much force she claimed to use.
16
Aguero subsequently said that Hector Jr.’s body hit the floor before his head.
11
2. Defense case
The defense admitted several exhibits into evidence but called no witnesses.
II. DISCUSSION
A. Admission of evidence of uncharged domestic violence offenses
Aguero raises various arguments related to the trial court’s admission of evidence
of uncharged acts of domestic violence. First, he argues that admission of the evidence
of domestic violence he committed against La Fuente violated his due process rights as it
appealed to the implicit bias of jurors by suggesting that, as a Latino male, Aguero was
necessarily violent and abusive. Second, Aguero argues that the evidence had limited
relevance and should have been excluded as it was more prejudicial than probative under
Evidence Code section 352. Third, Aguero contends that the trial court erred by failing
to provide the jury with cautionary or limiting instructions on the use of this evidence in
reaching a verdict on the charged offenses. Fourth, he claims that the trial court
improperly excluded evidence that La Fuente engaged in domestic violence against both
Aguero and Hector Jr. As discussed below, we disagree with Aguero’s arguments in
their entirety.
1. Aguero’s implicit bias argument is not supported by the record
Aguero asserts that the propensity evidence raised implicit racial and gender
stereotypes, specifically that young Latino males are prone to violence. We do not
dismiss out of hand the potential impacts of implicit bias as a general proposition.
However, Aguero does not point to anything in this record to demonstrate that explicit or
implicit bias played a role in this trial. (Cal. Rules of Court, rule 8.204(a)(1)(C).)
Allegations that are not supported by references to the record will be deemed forfeited.
(Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745.)
12
2. No abuse of discretion in admitting uncharged acts of domestic
violence
We next address Aguero’s claim that the trial court erred by admitting the
evidence of uncharged domestic abuse under Evidence Code sections 110917 and 352.
a. Additional background
The prosecutor moved in limine to admit Aguero’s prior history of domestic
violence against La Fuente and Hector Jr. pursuant to Evidence Code section 1109.
When the trial court inquired about the specific instances of domestic violence involving
La Fuente, the prosecutor responded, “[I]n late 2017, [Aguero] hit her in the face during
an argument. Another time they were arguing in early 2018 and he hit her in the face.”
With respect to Hector Jr., the prosecutor informed the court that there were “[t]wo
separate instances, one in April and one in May where [] La Fuente left the baby with
[Aguero] uninjured … and when she came back he had a bruise to his face under
circumstances where the child is not mobile.” Aguero also moved in limine to exclude
that same evidence.
At the hearing on the parties’ motions, the prosecution argued the evidence was
relevant to establish Aguero’s propensity to commit violence, identity, and to attack his
credibility. In response, Aguero argued that admission of this evidence as propensity
evidence would violate his due process rights, and also that it did not meet the criteria for
admission as identity evidence because “it all circles back to propensity and whether or
not because he engages in this pattern of violence against [] La Fuente specifically or the
17
Aguero appears to argue that this court should reconsider whether admitting
evidence of uncharged domestic violence under Evidence Code section 1109 violates a
defendant’s due process rights as a matter of course. As noted in People v. Mani (2022)
74 Cal.App.5th 343, 375 (Mani), “due process challenges to section 1109 have been
repeatedly rejected. [Citation.]”
13
child … he’s the likely person to engage in some fatal blows or the blows that led to the
hospitalizations and ultimately [Hector Jr.’s] death.”18
The trial court granted the prosecutor’s motion, finding that “with respect to prior
domestic violence, the two specific instances the People mentioned in late 2017 and early
2018, as well as a general history of domestic violence relating to arguments and
resulting in violence . . . resulting from arguments, the Court will allow that under the
rationale of [People v. Dallas (2008) 165 Cal.App.4th 940] … and Evidence Code
[section] 1109.” In addition to the domestic violence against La Fuente, the trial court
allowed the introduction of evidence of “two incidents where the baby was bruised while
in the defendant’s care in April and May, … for the same reasons, propensity and
identity.” With respect to Aguero’s credibility, the trial court reserved ruling on that
basis depending on “how the evidence plays out.”
At trial, and over defense counsel’s continuing objection, La Fuente testified about
both specific and generalized instances of domestic violence committed by Aguero. The
first instance she described occurred in December 2016 while they were having dinner at
her parent’s home. La Fuente testified that Aguero seemed irritated and walked outside
the house. She followed him and asked what was wrong, but he did not answer. Instead,
Aguero punched her in the jaw. Later that evening, Aguero apologized and said he
would not hit her again.
After they had been together for six months or so, La Fuente testified when she
and Aguero would argue, he would hit her “[m]any times. Three to five days out of the
week.” Most of the time, Aguero would hit her in the face, causing “bruise[s], swelling,
18
To the extent Aguero argues that the evidence of uncharged domestic violence
offenses was improper under Evidence Code section 1101, subdivision (b) to establish
identity or to attack his credibility, we need not address those claims since we conclude
that the trial court properly admitted the evidence under Evidence Code section 1109.
14
bites on my lip.” La Fuente stated that she did not leave Aguero “[b]ecause I continued
to believe his promises that he would no longer do that, and I continued to love him, and
because he said he was going to change.” Once La Fuente gave birth to Hector Jr., the
domestic violence briefly ended.
In March 2018, a few months after Hector Jr. was born, La Fuente and Aguero
were renting a room in a larger house. La Fuente returned home and the landlord told her
that Aguero had caused a problem with another tenant so she and Aguero would have to
move. La Fuente spoke to Aguero and asked him to explain what happened, but he
refused to answer her. When she continued to question him, Aguero became angry and
hit her in the jaw, injuring his right hand.
Detective Barboza’s testimony about his recorded interviews with La Fuente and
Aguero included some brief references to Aguero’s domestic violence, supported by
video clips of those interviews. Specifically, Barboza confirmed that La Fuente was
consistent in her two interviews at the hospital and at the police station that Aguero had
hit her. Barboza testified that Aguero told different stories about this subject during his
interviews. At first, Aguero denied that he ever hit La Fuente but later admitted that he
had indeed assaulted and injured her.
Neither party asked for instructions on the Evidence Code section 1109 evidence.
As a result, the jury was not instructed with CALCRIM No. 852A on evidence of
uncharged domestic violence or with CALCRIM No. 375 on evidence of uncharged
offenses. The jury was instructed with CALCRIM No. 303 on limited purpose evidence.
In final argument, the prosecutor told the jury that the evidence of Aguero’s
domestic violence against La Fuente supported two conclusions: (1) it was Aguero, not
La Fuente, who injured and killed Hector Jr. because Aguero had a history of violently
lashing out when frustrated; and (2) Aguero was not credible given his conflicting
15
statements about that domestic violence and his conflicting statements about hitting
Hector Jr.
b. Applicable legal principles
“Character evidence, sometimes described as evidence of a propensity or
disposition to engage in a type of conduct, is generally inadmissible to prove a person’s
conduct on a specified occasion.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1159;
Evid. Code, § 1101, subd. (a).) However, the Legislature has created certain exceptions
to the prohibition against admitting propensity evidence in cases involving sexual
offenses (Evid. Code, § 1108, subd. (a)) and domestic violence (id., § 1109, subd. (a)(1)).
Evidence Code section 1109, subdivision (a)(1) provides, as follows: “Except as
provided in subdivision (e) or (f), in a criminal action in which the defendant is accused
of an offense involving domestic violence, evidence of the defendant’s commission of
other domestic violence is not made inadmissible by Section 1101 if the evidence is not
inadmissible pursuant to Section 352.” “ ‘Domestic violence’ has the meaning set forth
in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section
352, which shall include consideration of any corroboration and remoteness in time,
‘domestic violence’ has the further meaning as set forth in Section 6211 of the Family
Code, if the act occurred no more than five years before the charged offense.” (Evid.
Code, § 1109, subd. (d)(3).) Under Family Code section 6211, subdivision (e), domestic
violence includes abuse committed against “[a] child of a party.”
The California Supreme Court has previously rejected the argument that Evidence
Code section 1108 violates a defendant’s right to due process in People v. Falsetta (1999)
21 Cal.4th 903 (Falsetta). Falsetta held that “the trial court’s discretion to exclude
propensity evidence under [Evidence Code] section 352 saves [Evidence Code] section
1108 from [a] due process challenge.” (Id. at p. 917.) Although the California Supreme
Court has not specifically ruled on the constitutionality of Evidence Code section 1109—
16
a parallel provision to Evidence Code section 1108—Courts of Appeal have consistently
concluded that Evidence Code section 1109 does not violate principles of due process
under the reasoning in Falsetta. (See, e.g., Mani, supra, 74 Cal.App.5th at p. 376; People
v. Hoover (2000) 77 Cal.App.4th 1020; People v. Johnson (2000) 77 Cal.App.4th 410,
420.)
Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” “ ‘[A] court need
not expressly weigh prejudice against probative value or even expressly state that it has
done so, if the record as a whole shows the court was aware of and performed its
balancing functions under Evidence Code section 352.’ ” (People v. Doolin (2009) 45
Cal.4th 390, 438.)
When engaging in a “careful weighing process under [Evidence Code] section 352
. . . trial judges must consider such factors as [the evidence’s] nature, relevance, and
possible remoteness, the degree of certainty of its commission and the likelihood of
confusing, misleading, or distracting the jurors from their main inquiry, its similarity to
the charged offense, its likely prejudicial impact on the jurors, the burden on the
defendant in defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as admitting some but not all of the
defendant’s other [] offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917.) Nevertheless, the
determination is “entrusted to the sound discretion of the trial judge who is in the best
position to evaluate the evidence.” (Id. at pp. 917–918.) A trial court’s exercise of
discretion under section 352 will not be overturned “in the absence of manifest abuse,
17
upon a finding that its decision was palpably arbitrary, capricious and patently absurd.”
(People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings).)
c. Analysis
Here, the prosecution offered the evidence of Aguero’s uncharged domestic
violence against La Fuente under Evidence Code section 1109, in order to show his
propensity to engage in domestic violence, specifically child abuse, against Hector Jr.
Before permitting the prosecution to admit this evidence, the trial court evaluated it under
Evidence Code section 352, determining that its probative value was not substantially
outweighed by its potential prejudice. As explained below, we conclude that the trial
court did not abuse its discretion in admitting the evidence.
An important and relevant consideration in the section 352 analysis was the fact
that Aguero corroborated some of the uncharged domestic violence allegations when he
admitted in his recorded interview that he struck La Fuente when they argued.
The uncharged offenses were also relevant and sufficiently similar in nature to the
charged offenses. “ ‘ “The principal factor affecting the probative value of an uncharged
act is its similarity to the charged offense.” ’ ” (People v. Johnson (2010) 185
Cal.App.4th 520, 531; Falsetta, supra, 21 Cal.4th at p. 917 [trial court should consider
factors including “similarity to the charged offense”].) La Fuente testified that Aguero
would argue with her, become angry, then strike her in the face. As Aguero admitted to
police, he became frustrated and exasperated with Hector Jr. when he would not stop
crying after Aguero dropped him, so he hit Hector Jr. “very hard” with an open hand
three or four times. While there are dissimilarities between the uncharged and charged
offenses, most notably the victims’ differences in age and gender, “dissimilarity alone
does not compel exclusion of the evidence.” (See People v. Cordova (2015) 62 Cal.4th
104, 133 [addressing admissibility of uncharged sex offenses under Evidence Code
18
section 1108].) In this case, Aguero’s prior acts of domestic violence provided evidence
of a propensity to react angrily and violently when angered in the home.
The evidence of domestic violence against La Fuente was neither inflammatory
nor remote in time. La Fuente testified that her injuries consisted of “bruises, swelling,
[and] bites on my lip.” It is difficult to imagine that a jury would convict Aguero of
killing his child in order to punish him for inflicting the injuries La Fuente described.
As for the remoteness of the incidents, La Fuente testified generally that Aguero
hit her often over the course of their relationship during arguments but also described two
instances of domestic violence in more detail. The first of these took place in December
2016, two years prior to Hector Jr.’s death, and the second occurred in March 2018, just
five months before the crime. Evidence Code section 1109, subdivision (e) provides that
“[e]vidence of acts occurring more than 10 years before the charged offense is
inadmissible under this section, unless the court determines that the admission of this
evidence is in the interest of justice.” Both of the incidents specifically described by La
Fuente took place well within the 10 year period allowed for under Evidence Code
section 1109.19
We are not persuaded, as Aguero argues, that evidence that La Fuente was violent
toward him and Hector Jr. should have been admitted under the “rule of completeness” in
Evidence Code section 356.20 That statute provides, in relevant part, “when a detached . .
. declaration [or] conversation . . . is given in evidence, any other . . . declaration [or]
conversation . . . which is necessary to make it understood may also be given in
evidence.” (Evid. Code, § 356.) Evidence Code section 356 is the statutory version of
19
La Fuente and Aguero began dating in July 2016 so even the generalized acts of
domestic violence she described would necessarily have taken place within 10 years.
20
Assuming arguendo Aguero did not forfeit or waive Evidence Code section 356
as a ground for admission of the proffered statements, we conclude the trial court did not
err by implicitly finding they were not admissible on that ground.
19
the common law rule of completeness. (People v. Parrish (2007) 152 Cal.App.4th 263,
269, fn. 3 (Parrish).) When one party places in evidence one part of a conversation or
statement, the other party may place the remainder of that conversation or statement in
evidence provided those other statements have some bearing on, or connection with, the
admission or declaration in evidence. (Evid. Code, § 356; People v. Zapien (1993) 4
Cal.4th 929, 959.) For admission under Evidence Code section 356, those other
statements must be on the same subject or must be necessary to understand the original
statements already admitted. (People v. Maury (2003) 30 Cal.4th 342, 419 (Maury).)
We review a trial court’s ruling under Evidence Code section 356 for abuse of discretion.
(Parrish, at p. 274.) Aguero’s admission that he struck La Fuente multiple times when
they argued was unambiguous and needed no clarification or context to “make it
understood.” (Evid. Code, § 356; Maury, at p. 419.)
Accordingly, the trial court did not abuse its discretion in admitting the evidence
of Aguero’s uncharged domestic violence. The trial court engaged in the weighing
process required by Evidence Code section 352 and admitting the uncharged domestic
violence evidence did not violate Aguero’s due process rights. (Mani, supra, 74
Cal.App.5th at p. 376.)
d. No prejudice
Even assuming the trial court erred in admitting the evidence of uncharged
domestic violence, Aguero cannot show he was prejudiced by its introduction.
Aguero initially argues that we should evaluate any error in admitting this
evidence under the standard set forth in Chapman v. California (1967) 386 U.S. 18(Chapman).21 He then acknowledges that, in the absence of a federal constitutional
21
Under Chapman, the burden would be on the Attorney General to show that the
error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
20
violation, any claim of error in admitting evidence is evaluated under the Watson22
standard. We do not find any violation of the U.S. Constitution, and thus we apply
Watson. (People v. Partida (2005) 37 Cal.4th 428, 439 [“Absent fundamental unfairness,
state law error in admitting evidence is subject to the traditional Watson test”].) Under
Watson, the burden falls on Aguero to show a reasonable probability that, absent the
error, he would have achieved a more favorable result at trial. (Watson, supra, at p. 836.)
Given the weight of the other evidence establishing Aguero’s culpability, discussed
below, no such reasonable probability can be shown.
First, Aguero admitted that, on August 7, he dropped Hector Jr. on his head and
struck him “very hard” multiple times when Hector Jr. would not stop crying. When
asked about Hector Jr.’s significant bruises, Aguero said that he saw no such bruising on
the baby when he changed his diaper that morning.
Second, Aguero was alone with Hector Jr. when he was injured, both on July 27,
and on August 7. G.R. corroborated La Fuente’s testimony that Hector Jr.’s injuries
occurred when La Fuente was at work.
Third, La Fuente’s testimony regarding how Hector Jr. would get bruises on his
face when Aguero took care of him in April and May was also corroborated by A.M.
A.M. took photographs of those bruises which were displayed to the jury.
Given the strength of the evidence of Aguero’s guilt, it is not reasonably probable
that the jury would have returned a different verdict absent the evidence of uncharged
domestic violence.
22
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
21
3. No instructional error
Aguero next contends that the admission of the uncharged offenses evidence was
error due to the trial court’s failure to instruct the jury with CALCRIM No. 852A on how
to treat that evidence in its deliberations. We disagree.
As a threshold matter, the Attorney General argues that Aguero forfeited his claim
of instructional error by failing to request the relevant instructions at trial. However,
because Aguero contends the failure to instruct on the use of the uncharged offenses
evidence affected his substantial rights, we decide that we can consider the merits of his
claim in spite of the failure to request such instructions. (See People v. Grandberry
(2019) 35 Cal.App.5th 599, 604; People v. Gomez (2018) 6 Cal.5th 243, 312.)
a. Applicable legal standards
“[T]he trial court ordinarily has no sua sponte duty to instruct the jury as to the
admissibility or use of other crimes evidence. [Citation.]” (Falsetta, supra, 21 Cal.4th at
p. 924.) However, in the “occasional extraordinary case in which unprotested evidence
of past offenses is a dominant part of the evidence against the accused, and is both highly
prejudicial and minimally relevant to any legitimate purpose. … the evidence might be so
obviously important to the case that sua sponte instruction would be needed to protect the
defendant from his counsel’s inadvertence.” (People v. Collie (1981) 30 Cal.3d 43, 64
(Collie).)
b. Analysis
Aguero’s claim fails because it is not reasonably probable that the jury would have
reached a different verdict even if they had been given the instruction in question.
(Falsetta, supra, 21 Cal.4th at p. 925 [Watson standard applies to uncharged crimes
evidence].)
CALCRIM No. 852A informs the jury that it may only consider evidence of
uncharged domestic violence to prove the defendant’s propensity to commit such
22
offenses, domestic violence, if the prosecution proves, by a preponderance of the
evidence, that the described domestic violence took place.23 Like in Jennings, supra, 81
Cal.App.4th at p. 1318, instructing the jury here with CALCRIM No. 852A “would have
added virtually nothing to the reasonable doubt and other instructions actually given by
the trial court aside from emphasizing to the jury the existence of the prior abuse
evidence and its potential use as evidence of [Aguero]’s predisposition to commit the
charged crimes.” “[T]he instruction would have specifically pointed out to the jury that
the evidence of [Aguero]’s prior acts of domestic abuse against the victim could be used
as evidence that ‘ “. . . he has a trait of character that predisposes him to commission of
certain crimes, . . .” ’ and moreover that the jury could ‘ “. . . use that evidence that [he]
committed another offense for the limited purpose of deciding whether he has a particular
character trait that tends to predispose him to the commission of the charged offense. . . .”
’ [Citation.]” (Ibid., italics added by Jennings.)
23
CALCRIM No. 852A informs the jury how to evaluate evidence of uncharged
domestic violence as follows: “You may consider this evidence only if the People have
proved by a preponderance of the evidence that the defendant in fact committed the
uncharged domestic violence. Proof by a preponderance of the evidence is a different
burden of proof from proof beyond a reasonable doubt. A fact is proved by a
preponderance of the evidence if you conclude that it is more likely than not that the fact
is true. [¶] If the People have not met this burden of proof, you must disregard this
evidence entirely. [¶] If you decide that the defendant committed the uncharged
domestic violence, you may, but are not required to, conclude from that evidence that the
defendant was disposed or inclined to commit domestic violence and, based on that
decision, also conclude that the defendant was likely to commit [and did commit] <insert
charged offense[s] involving domestic violence>, as charged here. If you conclude that
the defendant committed the uncharged domestic violence, that conclusion is only one
factor to consider along with all the other evidence. It is not sufficient by itself to prove
that the defendant is guilty of <insert charged offense[s] involving domestic violence>.
The People must still prove (the/each) (charge/ [and] allegation) beyond a reasonable
doubt.”
23
In this case, there was little dispute over the prior uncharged domestic violence,
since Aguero admitted, in his videorecorded interview, that he hit La Fuente on two
occasions when they argued. Based on Aguero’s statements in clips played for the jury,
it was reasonable to infer that he had hit La Fuente on multiple occasions when they
argued. Aguero said that he hit her with his fist, saying, “I made her bleed from the
mouth,” and “her lip got swollen.” In light of these admissions, the failure to instruct the
jury on how to consider such evidence was harmless.24
The failure to instruct was also not prejudicial given the evidence of Aguero’s
guilt, as detailed above in section II.A.2.d.
4. No ineffective assistance for not requesting limiting instructions
Aguero also argues that, assuming the trial court had no duty to instruct the jury
with CALCRIM No. 852A, his trial counsel was constitutionally ineffective for failing to
request that instruction. As discussed below, we disagree.
To prevail on an ineffective assistance of counsel claim, a defendant must
establish that trial counsel’s performance was deficient, and that defendant suffered
prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80
L.Ed.2d 674] [defendant must establish both deficient performance of counsel and
resulting prejudice to prevail on ineffective assistance of counsel claim].) The deficient
performance component of an ineffective assistance of counsel claim requires a showing
that “counsel’s representation fell below an objective standard of reasonableness” under
prevailing professional norms. (Id. at p. 688.) Regarding prejudice, a “defendant must
24
While we conclude that this was not one of the “occasional extraordinary
case[s]” foreseen in Collie, supra, 30 Cal.3d at p. 64, and thus the court had no sua sponte
duty to provide a limiting instruction to the jury, we think trial courts should strongly
consider taking the position that they will, absent objection, give appropriate limiting
instructions when evidence of uncharged offenses is admitted.
24
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” (Id. at p. 694.)
“On direct appeal, a conviction will be reversed for ineffective assistance only if
(1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding.” (People v.
Mai (2013) 57 Cal.4th 986, 1009.)
Based on the record in this case, trial counsel may reasonably have understood that
the jury would find that Aguero’s admissions to committing domestic violence against La
Fuente would more than meet the preponderance of the evidence standard for considering
this evidence. Although CALCRIM No. 852A also contains language which limits how
jurors can use such evidence in determining whether a defendant is guilty of the charged
offenses, counsel may have reasonably concluded, on balance, that the jury instruction
would only serve to underscore the jury’s ability to use such propensity evidence to prove
his guilt. Because the record does not affirmatively disclose counsel had no rational
tactical purpose for not requesting the instruction, he was not asked the reason and failed
to provide one, or there simply could be no satisfactory explanation, we do not find that
counsel provided ineffective assistance in this regard.
5. No ineffective assistance for not seeking admission of police interviews
Aguero next claims that he received ineffective assistance of counsel for not
seeking admission of Aguero’s full interview with the police, in which he made
statements accusing La Fuente of abusing Hector Jr. We reject this argument as Aguero
cannot show that counsel was ineffective or, if he were, that he was prejudiced by
defense counsel’s failure.
25
The record here does not provide an explanation for counsel’s decision to not seek
admission of the entirety of Aguero’s recorded interview with police, but we cannot say
counsel had no satisfactory reasons for making that choice. First, Aguero’s accusations
of abuse by La Fuente were hearsay, and counsel cannot be ineffective for not seeking to
introduce inadmissible evidence. (See People v. Thompson (2010) 49 Cal.4th 79, 122
[“Counsel is not ineffective for failing to make frivolous or futile motions.”].)
Second, Aguero’s interviews contained many inconsistent and contradictory
statements, along with implausible explanations for how Hector Jr. was injured. A
reasonable attorney would consider that the jury would find Aguero to be less credible
after watching the full interviews and would view his statements attempting to shift
blame onto La Fuente as both untruthful and self-serving. Not seeking to admit these
interviews for such a reason would have been a reasonable tactical decision.
Moreover, as discussed in detail above, Aguero cannot show prejudice from
counsel’s decision because the evidence of his guilt, especially his admissions that he not
only dropped Hector Jr. but struck him “very hard” several times, was extensive.
6. No prosecutorial error
Aguero next argues that the prosecutor committed error during final argument by
arguing facts outside the record, vouching for La Fuente’s credibility, and by improperly
commenting on the fact that Aguero elected not to testify. Aguero also contends that
defense counsel’s failure to object to the prosecutor’s conduct constituted ineffective
assistance of counsel.
The Attorney General first argues that Aguero has forfeited this argument because
his trial counsel failed to object below. As to his alternative claim of ineffective
assistance of counsel, the Attorney General contends that: (1) trial counsel’s failure to
object did not amount to ineffective assistance; and (2) Aguero cannot establish that he
was prejudiced by the failure to object.
26
Although defense counsel did not object and therefore forfeited the claim, we
address the merits, given Aguero’s alternative argument that his trial counsel was
constitutionally ineffective. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1125–
1126.) Our review of the record satisfies us that no error occurred.
a. Applicable legal standards
“ ‘Improper comments violate the federal Constitution when they constitute a
pattern of conduct so egregious that it infects the trial with such unfairness as to make the
conviction a denial of due process.’ ” (People v. Bell (2019) 7 Cal.5th 70, 111.) A
prosecutor engages in prosecutorial misconduct under state law if he or she uses
deceptive or reprehensible methods to attempt to persuade either the trial court or the
jury. (People v. Morales (2001) 25 Cal.4th 34, 44.)
“ ‘It is settled that a prosecutor is given wide latitude during argument. The
argument may be vigorous as long as it amounts to fair comment on the evidence, which
can include reasonable inferences, or deductions to be drawn therefrom.’ ” (People v.
Wharton (1991) 53 Cal.3d 522, 567.) When evaluating the propriety of a prosecutor’s
remarks or comments made before the jury, “the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) To find
prosecutorial error, we must view the challenged statements in the context of the entire
argument and the jury instructions to determine whether there was a reasonable
likelihood the jury understood or applied the comments in an improper or erroneous
manner. (People v. Cortez (2016) 63 Cal.4th 101, 130–131 (Cortez).) “If the challenged
comments, viewed in context, ‘would have been taken by a juror to state or imply nothing
harmful, [then] they obviously cannot be deemed objectionable.’ ” (Id. at p. 130.) “ ‘In
conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements.’ ” (People v.
27
Centeno (2014) 60 Cal.4th 659, 667.) “ ‘[W]e presume that jurors treat the court’s
instructions as a statement of the law by a judge, and the prosecutor’s comments as words
spoken by an advocate in an attempt to persuade.’ ” (People v. Osband (1996) 13 Cal.4th
622, 717.)
b. Reference to evidence outside record
Aguero first points to a portion of the prosecutor’s rebuttal argument as implying
to the jury that there were other witnesses who could corroborate La Fuente’s evidence of
domestic violence, specifically the following: “And with me bringing up corroboration of
this domestic violence, I thought about it. But why do I need to go pull witnesses to
prove she’s a victim of domestic violence when he says he’s hit her and given her
injuries? That’s a waste of resources. It’s a waste of your time. It’s a waste of county
resources.”
These statements, however, were made in response to defense counsel’s final
argument that the jury should reject La Fuente’s “story of being abused three to five
times a week” because there was no “corroboration of this[,]” no “pictures[,]” or
“hospital visits.” The prosecutor did not, as Aguero suggests, inform the jury that there
were photos or hospital records or other evidence outside the record to support La
Fuente’s testimony. Instead, the prosecutor continued by directly challenging Aguero’s
assertion that “there is no corroboration[]” by pointing out that Aguero’s “confession [to
domestic violence] is a corroboration.” The prosecutor’s statements about corroborating
the evidence of domestic violence were thus both a fair response to defense counsel’s
argument and a fair comment on the evidence presented at trial.
c. Vouching
Aguero next contends that the prosecutor improperly referred to the “reasons”
behind La Fuente’s plea bargain in order to vouch for La Fuente’s credibility. We
disagree.
28
“[A] ‘prosecutor is prohibited from vouching for the credibility of witnesses or
otherwise bolstering the veracity of their testimony by referring to evidence outside the
record.’ [Citation.]” (People v. Turner (2004) 34 Cal.4th 406, 432–433.) “ ‘However, so
long as a prosecutor’s assurances regarding the apparent honesty or reliability of
prosecution witnesses are based on the “facts of [the] record and the inferences
reasonably drawn therefrom, rather than any purported personal knowledge or belief,”
[the prosecutor’s] comments cannot be characterized as improper vouching.’ [Citation.]”
(People v. Stewart (2004) 33 Cal.4th 425, 499, italics omitted.)
In making his vouching argument, Aguero cites to the following portions of the
prosecutor’s rebuttal argument to the jury: “[I]n terms of this case against mom with the
deal she got, there are reasons for plea bargaining beyond anything that’s relating to
man’s guilt [sic]. There is information that goes into this that’s not given to you because
it’s not for you to make your decision. [Defense counsel] is well aware of why she got
the exact charges. He knows why. There’s no—but it’s not relevant to this case. [¶] …
[T]here is no way on God’s green earth that I can prosecute that woman for the direct
infliction of abuse, causing the death of that child. Because this is actually a great
example of the thing that judge told you at the beginning of this trial. Just because
someone is charged and arrested doesn’t—that’s not evidence of guilt. Sometimes things
change. Sometimes different DAs have different perspectives.”
What Aguero fails to acknowledge is that the prosecutor’s remarks were in direct
response to defense counsel’s closing argument, in which he suggested that if La Fuente
had testified truthfully, she was not guilty of any crime, even the crimes to which she
pleaded. Because the prosecution still threatened her with prison time, La Fuente only
entered into the plea agreement in order to “save her skin” and provide false testimony
29
against Aguero.25 The prosecutor’s rebuttal statements were a fair response to defense
counsel’s (arguably misleading) statements implying that La Fuente’s testimony
implicating Aguero was coerced by the threat of significant prison time.
Furthermore, the prosecutor did not end his remarks there, but continued by
recounting the evidence that supported La Fuente’s credibility and lack of culpability for
Hector Jr.’s injuries. For example, La Fuente took Hector Jr. to the hospital on April 10
after he fell off the couch despite his lack of apparent injuries, demonstrating she acted
out of care for the child rather than concern over whether she might be suspected of child
abuse. La Fuente did so again on July 27 when she came home, after leaving Hector Jr.
alone with Aguero, to discover the large lump on the left rear side of his head. The
prosecutor also reminded the jury that La Fuente’s testimony was consistent, whereas
Aguero’s was not, and further, that Aguero admitted to hitting Hector Jr. on August 7 out
of frustration.
The prosecutor’s comment that he and defense counsel were aware of the reasons
why La Fuente was offered a plea bargain was not vouching for La Fuente’s credibility.
He expressly informed the jury that the reasons for La Fuente’s plea bargain were not
relevant to the task before it. Instead, the prosecutor reminded the jurors of all the
evidence presented to them that would let them draw their own conclusions about La
Fuente’s credibility. The prosecutor did not argue that the jury should find La Fuente
credible because of her plea agreement, but rather because her prior interviews and her
testimony were consistent throughout.
25
In his brief, Aguero makes the following assertion: “[La Fuente] obtained her
plea agreement after the prosecution promised not to seek a murder charge, the same
charge found to be supportable against her by the magistrate at the preliminary hearing.”
This mischaracterizes the record. At the close of the preliminary hearing, the magistrate
expressly stated that he would not hold La Fuente to answer for implied malice murder if
the prosecution sought to bring such a charge against her.
30
Because the prosecutor did not vouch for La Fuente’s credibility and informed the
jury that the reasons for her plea agreement were not relevant to the proceedings against
Aguero, it is not reasonably likely the jury understood or applied the comments in an
improper or erroneous manner. (Cortez, supra, 63 Cal.4th at pp. 130–131.)
d. No Griffin error
Aguero’s final claim of prosecutorial error is that the prosecutor twice improperly
commented on his failure to testify in violation of the rule set forth in Griffin v.
California (1965) 380 U.S. 609, 615 (Griffin). The initial commentary consisted of the
following remarks: “[Aguero] does not have to testify. It’s his constitutional right. It
cannot be held against him. But if that is the route they choose to go, [defense counsel]
has to get up here and testify for his client and start bringing things that no one has
discussed, no one has alleged, and there’s no evidence to pull that from.” A few minutes
later, the prosecutor stated that, on July 27, Aguero “bashed that kid’s head in. I can’t tell
you how exactly, but he lost his cool. … [¶] And on August 7th, … [¶] … I have no
doubt he was groggy, looking for a bottle, and probably dropped the baby. … [¶] … And
so the man with the admitted anger issues and frustration problems … lost control and …
spanked the baby very hard. [¶][¶] And he [shook] the hell out of this kid. Maybe
bashed his head on something.”
In the second instance, the prosecutor stated: “[Y]ou have no evidence from any
source, from either of the adults that were in that room that day that anything happened
prior to [Aguero] waking up. You don’t have it from [La Fuente]. You don’t have it
from [Aguero].”
i. Applicable legal standards
Griffin established that the Fifth Amendment of the United States Constitution
forbids “comment by the prosecution on the accused’s silence.” (Griffin, supra, 380 U.S.
at p. 615; U.S. v. Robinson (1988) 485 U.S. 25, 32, 108 S. Ct. 864, 99 L. Ed. 2d 2331
[Griffin prohibits “ ‘[the] prosecutor from suggesting to the jury that it may treat the
defendant's silence as substantive evidence of guilt.’ ”].) “Pursuant to Griffin, it is error
for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that
evidence could not be contradicted or refuted by anyone other than the defendant
testifying on his or her own behalf. [Citations.]” (People v. Hughes (2002) 27 Cal.4th
287, 371–372.) The California Supreme Court has also suggested “that it is error for the
prosecution to refer to the absence of evidence that only the defendant’s testimony could
provide. [Citation.] But although ‘ “Griffin forbids either direct or indirect comment
upon the failure of the defendant to take the witness stand,” ’ the prohibition ‘ “does not
extend to comments on the state of the evidence or on the failure of the defense to
introduce material evidence or call logical witnesses.” ’ [Citation.]” (Id. at p.
372.) Claims of Griffin error are evaluated by inquiring whether there is a reasonable
likelihood that a prosecutor’s remarks would have been understood as referring to a
defendant’s failure to testify. (People v. Clair (1992) 2 Cal.4th 629, 662 (Clair).)
ii. Analysis
Again, the remarks which in Aguero’s view constituted Griffin error were made
during the prosecutor’s rebuttal. In his final argument, defense counsel argued that it was
La Fuente who “inflicted these injuries [on Hector Jr.] before she went to work on August
7 and placed an unconscious baby next to my client.” When Aguero woke up, Hector Jr.
“waxed and waned” while Aguero “tried to treat the baby as if nothing was wrong
because he didn’t know anything was wrong. He gave the baby stimuli, normal loving
fatherly stimuli where he changed the diaper. He tried to give the baby food. The baby
did not respond. He tried to wake the baby. The baby was in cardiac arrest. And he
called 911.”
The prosecutor’s rebuttal was directly responding to defense counsel’s accusations
that it was La Fuente, rather than Aguero, who injured Hector Jr., pointing out to the
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jurors that there was no evidence supporting defense counsel’s version of what happened
that morning. Instead, as the prosecutor argued in rebuttal, the evidence was that Aguero
was the one who dropped Hector Jr. on August 7 and, in frustration at the baby’s
continued crying, hit him “very hard” in the face multiple times. Aguero himself
admitted these facts. The prosecutor also rebutted defense counsel’s version of events by
pointing the jury to the evidence that Hector Jr. had suffered severe injuries that morning,
and if La Fuente had inflicted them, it was highly unlikely that Aguero would not have
woken up.
Based upon the record, it is not reasonably probable that the jury understood the
prosecutor’s remarks about the lack of evidence supporting defense counsel’s version of
what occurred to be a comment on Aguero’s failure to testify. (See Clair, supra, 2
Cal.4th at p. 662.)
Even if the prosecutor’s rebuttal statements indirectly violated Griffin, we would
conclude that the error was harmless. “[I]ndirect, brief and mild references to a
defendant’s failure to testify, without any suggestion that an inference of guilt be drawn
therefrom, are uniformly held to constitute harmless error.” (People v. Hovey (1988) 44
Cal.3d 543, 572.) The trial court instructed the jury that Aguero “has an absolute
constitutional right not to testify[]” and that it should “not consider for any reason at all
the fact that [Aguero] did not testify.” The jury was also instructed that “[n]othing the
attorneys say is evidence” and, while they may discuss the case during final arguments,
“their remarks are not evidence.” We presume the jury understood and correctly applied
these instructions. (People v. Holt (1997) 15 Cal.4th 619, 677.)
For all of these reasons, we conclude that the prosecutor’s statements in opening
and rebuttal argument did not constitute reversible error under Griffin.
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7. No cumulative error
Aguero next contends that the cumulative effect of the purported errors discussed
above warrants reversal of the judgment. “In theory, the aggregate prejudice from
several different errors occurring at trial could require reversal even if no single error was
prejudicial by itself.” (In re Reno (2012) 55 Cal.4th 428, 483.) Here, we have found
no errors, and where we assumed error, we also found no prejudice. Consequently, we
reject Aguero’s cumulative error argument.
8. Amendment to section 654
Finally, Aguero argues that the matter must be remanded for resentencing on
counts 2 and 3 so that the trial court may exercise its discretion under recently
amended section 654. The Attorney General concedes that remand is appropriate and we
agree that the concession is well-taken.
Section 654 prohibits multiple punishments for a single act or omission. (See
People v. Delgado (2017) 2 Cal.5th 544, 570.) At the time of Aguero’s sentencing,
section 654 required the trial court to punish a defendant “under the provision that
provide[d] for the longest potential term of imprisonment.” (§ 654, former subd. (a).)
Effective January 1, 2022, section 654 was amended by Assembly Bill No. 518 to
give the trial court discretion to select the provision under which a defendant would be
punished. As relevant here, section 654 now provides, “An act or omission that is
punishable in different ways by different provisions of law may be punished under either
of such provisions, but in no case shall the act or omission be punished under more than
one provision.” (§ 654, subd. (a), italics added.)
The amendment of section 654 effected an ameliorative change to the law as trial
courts are no longer required to impose sentence under the provision that provides for the
longest term of imprisonment when a defendant is convicted of multiple crimes for a
single act or omission. When a court has imposed a sentence while unaware of the extent
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of its discretion—in this case because the legislation was not yet in effect—resentencing
is required unless the record clearly indicates the court would have imposed the same
sentence under the new standard. (People v. Gerson (2022) 80 Cal.App.5th 1067, 1096.)
We agree with the parties that Aguero is entitled to the retroactive application
of amended section 654 because there is no indication that the Legislature intended the
law to apply prospectively only, and this case is not yet final. (See, e.g., Mani, supra, 74
Cal.App.5th at pp. 379–380; People v. Mendoza (2022) 74 Cal.App.5th 843, 861–862.)
In addition, the record does not indicate that the trial court would, exercising its
discretion under the amended version of section 654, impose the same sentence in this
case as it originally imposed a lesser (stayed) term on count 3.
We will therefore remand the matter for resentencing under amended section 654.
III. DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court to
resentence Aguero under the amended version of Penal Code section 654.
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____________________________
Wilson, J.
WE CONCUR:
____________________________
Greenwood, P. J.
_____________________________
Grover, J.
People v. Aguero
H048899
In re Hector Aguero on Habeas Corpus
H051316