19CA2370 Peo v Aguirre 01-20-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA2370
Larimer County District Court No. 13CR209
Honorable Susan Blanco, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Richard John Aguirre,
Defendant-Appellant.
ORDER AFFIRMED
Division VI
Opinion by JUDGE FREYRE
Navarro and Harris, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 20, 2022
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Amelia Power, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
1
¶ 1 Defendant, Richard John Aguirre, challenges the
postconviction court’s order denying his Crim. P. 35(c) motion
without a hearing. He contends the postconviction court (1) erred
by not conducting an evidentiary hearing on his newly discovered
evidence claim; and (2) improperly evaluated his claim of
cumulative error and should have granted him a hearing.
1
We
disagree with his contentions and affirm the court’s order.
I. Factual and Procedural Background
¶ 2 In 2013, a jury convicted Aguirre of first degree assault for
stabbing Gilbert Gonzales. A division of this court affirmed his
conviction in People v. Aguirre, (Colo. App. No. 14CA0588, Mar. 3,
1
Because Aguirre’s appeal challenges only two of his original eleven
claims, we deem his remaining nine claims abandoned. People v.
Ortega, 266 P.3d 424, 428 (Colo. App. 2011) (citing People v.
Rodriguez, 914 P.2d 230, 249 (Colo. 1996)) (stating that a
defendant’s failure to specifically reassert claims on appeal that the
district court disposed of is a conscious relinquishment of those
claims). Aguirre’s abandoned claims include allegations that trial
counsel was ineffective (1) due to a conflict of interest; (2) for failing
to object to the images of a knife being shown to the jury; (3) in the
plea-bargaining stage; (4) for failure to investigate and put on a
defense; (5) for failure to consult with a medical expert; (6) for
failure to investigate and collaterally attack his habitual
convictions; and (7) for introducing Aguirre’s in-custody status to
the jury. He also abandoned his ineffective assistance of appellate
counsel claim and his claim that the prosecutor used false evidence
at trial.
2
2016) (not published pursuant to C.A.R. 35(f)). The mandate issued
on August 22, 2016. Aguirre filed a pro se Crim. P. 35(c) motion in
October 2018 that was later supplemented by appointed counsel.
The court denied the motion without a hearing on November 25,
2019, and this appeal followed.
¶ 3 As relevant here, Gonzales testified at trial that he and three
other people were at a friend’s home, when two of them, Roger
Sanchez and Aguirre, got into a verbal argument on the front porch.
Gonzales said he went outside to stop the fight and to tell Aguirre to
leave. Aguirre “got in his face,” and the two of them stepped off the
porch. When Gonzales turned around to tell Sanchez to go back
inside, he felt a punch to his side. He turned back toward Aguirre,
who struck him with a bat and ran away. Gonzales went back
inside and noticed that he had been stabbed. He recalled Aguirre
handling a knife earlier in the day.
¶ 4 Gonzales went to the hospital and first told the doctors that he
had accidentally injured himself installing a garage door. He
testified that he lied to the doctors to avoid retaliation from his
family for calling the police. Later, he spoke with investigating
officers and told them about the altercation with Aguirre.
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¶ 5 During cross-examination, defense counsel attacked
Gonzales’s credibility through questioning about his prior felony
convictions, his probation status, his alcohol use on the day of the
stabbing, and inconsistencies between his testimony and his
statements to police.
¶ 6 Sanchez also testified about the stabbing. He described being
on the porch with Gonzales and Aguirre before the stabbing. He
said that he and Aguirre were simply talking, and that Gonzales
instigated the argument by being rude and disrespectful to Aguirre.
He recalled Aguirre and Gonzales being near each other, then
seeing Aguirre walk away and Gonzales walk into the house,
holding his side and bleeding. When asked about detailed
statements he had made to the police about the argument and the
stabbing before trial — such as seeing Aguirre punch Gonzales in
the side — Sanchez either denied making the statements or said
that he was too drunk to remember making them.
¶ 7 Aguirre claimed in his supplemental postconviction motion
that new evidence was discovered when Sanchez spoke to
postconviction counsel’s investigator. Sanchez reported that when
Gonzales returned from the hospital, he said another party — not
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Aguirre — had stabbed him. Sanchez also said that Gonzales told
him that he planned to make money from his injury by filing a
victim impact statement. Sanchez claimed that he and Gonzales
had serious substance abuse issues that could have affected their
testimony at the time of the trial.
¶ 8 In a thorough written order, the postconviction court denied
Aguirre’s Crim. P. 35 (c) motion without a hearing. As relevant
here, the court found that while Sanchez’s new statements were
inconsistent with his trial testimony, the record showed that
Sanchez gave inconsistent testimony at trial and that the new
statement represented his third version of the events. It reasoned
that even if this third version cast doubt on the credibility of other
witnesses who testified at trial, Aguirre failed to show that a
reasonable juror with the appropriate degree of awareness of all the
circumstances would believe Sanchez’s third version more than the
prior two versions; therefore, this evidence would probably not
result in Aguirre’s acquittal.
II. Newly Discovered Evidence
¶ 9 Aguirre contends that the postconviction court erroneously
applied the holding in Farrar v. People, 208 P.3d 702, 706 (Colo.
5
2009), to deny him an evidentiary hearing rather than first
determining whether his allegations, if true, warranted a hearing.
See White v. Denver Dist. Ct., 766 P.2d 632, 634-35 (Colo. 1988).
We discern no abuse of discretion.
A. Standard of Review and Applicable Law
¶ 10 We review de novo a postconviction court’s decision to deny a
Crim. P. 35(c) motion without a hearing. People v. Cali, 2020 CO
20, ¶ 14. A court may deny a hearing only if the motion, files, and
record in the case clearly establish that the defendant’s allegations
are without merit and do not warrant postconviction relief. Ardolino
v. People, 69 P.3d 73, 77 (Colo. 2003) (first citing People v. Hutton,
P.2d 632).
¶ 11 Newly discovered evidence entitles a defendant to a new trial
only if the evidence would likely result in an acquittal for reasons
beyond simply impeaching other evidence already presented at trial;
it must contradict previous evidence “with a different and more
recantation justifies a new trial “only if it contains sufficiently
significant new evidence, and if it, rather than the witness’s
6
2006)).
¶ 12 To determine whether a witness’s new testimony would
probably be believed, the court may rely on its own experience, but
it must also consider all of the other testimony and circumstances
reasonable person with the appropriate degree of skepticism and
awareness of the relevant circumstances, rather than a typical
juror, would probably believe the witness’s new version of events.”
Id. (citing People v. Wadle, 97 P.3d 932, 937 (Colo. 2004)).
¶ 13 To succeed on a motion for new trial, a defendant must show
that (1) the evidence was discovered after the trial; (2) the defendant
and counsel exercised due diligence to discover all possible
favorable evidence before and during the trial; (3) the newly
discovered evidence is material to the issues involved and not
merely cumulative or impeaching; and (4) a retrial with the newly
discovered evidence would probably result in an acquittal. People v.
Gutierrez, 622 P.2d 547, 559-60 (Colo. 1981) (citing People v.
Scheidt, 187 Colo. 20, 22, 528 P.2d 232, 233 (1974)).
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B. Analysis
¶ 14 We conclude that even if Aguirre’s claim is true, it would not
entitle him to an evidentiary hearing because the new evidence
claim is meritless under a Farrar analysis. Ardolino, 69 P.3d at 77.
Therefore, his reliance on White is misplaced.
¶ 15 We reach this conclusion for two reasons. First, Sanchez’s
new testimony constitutes a “third version” of what occurred. If
true, Sanchez’s recantation would be sufficiently significant new
evidence because it identifies another as the perpetrator rather than
Aguirre. However, it strains credulity to conclude that a jury would
probably believe Sanchez’s third version of events any more than it
believed his prior inconsistent trial testimony. This latest version
does not identify the alleged new perpetrator or what the
circumstances were leading to Gonzales’s injury. Nor does it
identify any independent corroborating evidence produced at the
trial that would lead a reasonable jury to probably acquit Aguirre on
retrial.
¶ 16 Second, Aguirre has not shown that Sanchez’s new testimony
does anything more than merely impeach Sanchez’s and Gonzales’s
trial testimony. In our view, it falls short of satisfying the
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requirement that it be sufficiently substantial to probably result in
an acquittal.
¶ 17 As the postconviction court noted, relief under Farrar requires
a defendant to show that reasonable jurors — appropriately
skeptical and aware of the circumstances and content of Sanchez’s
previous statements — would more likely than not believe the more
recent statement and disbelieve the prior trial testimony. 208 P.3d
at 706-08. Aguirre failed to meet his burden under Farrar and
therefore is not entitled to relief. And because Aguirre’s claim, even
if true, would not entitle him to relief, he is not entitled to an
evidentiary hearing under White. Accordingly, we discern no error
here and affirm the court’s ruling.
III. Cumulative Error
¶ 18 Aguirre also contends that the court erred in denying his
cumulative error claim. He asserts that the court considered and
dismissed his claims individually rather than considering them in
the aggregate. As well, he asserts that the court could not properly
rule on the claim without an evidentiary hearing. We disagree.
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A. Standard of Review and Applicable Law
¶ 19 Cumulative error is a question of law that we review de novo,
and it applies where there are numerous formal irregularities, but
none individually warrants reversal. Howard-Walker v. People,
2019 CO 69, ¶¶ 22, 24. Though an error, when viewed in isolation,
may be harmless or not affect the defendant’s substantial rights,
reversal will nevertheless be required when “the cumulative effect of
[multiple] errors and defects substantially affected the fairness of
the trial proceedings and the integrity of the fact-finding process.”
Id. at ¶ 24 (quoting People v. Lucero, 200 Colo. 335, 344, 615 P.2d
660, 666 (1980)). To warrant reversal of a conviction on direct
appeal based on cumulative error, numerous errors must have been
committed, not merely alleged. People v. Thomas, 2014 COA 64,
¶ 61.
B. Analysis
¶ 20 Even assuming the cumulative error doctrine applies to
ineffective assistance of counsel claims, because we discern no
error in the court’s newly discovered evidence ruling, we necessarily
discern no cumulative error; the cumulative effect of nothing is still
nothing. And to the extent Aguirre asserts that the court erred in
10
denying a hearing on the cumulative error claim, we cannot
consider that issue because he did not appeal the court’s rulings on
the nine other claims.
IV. Conclusion
¶ 21 The order is affirmed.
JUDGE NAVARRO and JUDGE HARRIS concur.
