People v. Aguilar

THE PEOPLE, Plaintiff and Respondent, v. YANILL AGUILAR, Defendant and Appellant.

B267955

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

June 26, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA394340)

APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Judgment of conviction affirmed; remanded for further proceedings.

Rodger P. Curnow, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ A jury found defendant and appellant Yanill Aguilar guilty of first degree murder, with firearm and gang enhancements. He challenges his conviction, arguing: (1) the trial court erred by denying his motion to suppress his confession, which he contends was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) his confession should have been excluded because it was involuntary; (3) the trial court erred by excluding expert testimony on the subject of false confessions; (4) evidence of two cellular telephone text message conversations should have been excluded; (5) the prosecutor committed misconduct during argument; and (6) the cumulative effect of the purported errors requires reversal. In supplemental briefing, the parties agree that remand is necessary to permit a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin), and to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements pursuant to recently amended Penal Code section 12022.53, subdivision (h).¹ We affirm appellant's conviction, but remand the matter for a Franklin hearing and to allow the trial court to determine whether to strike or dismiss the firearm enhancements.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

a. People's evidence

(i) The shooting

Aguilar and Alejandro Salto were both members of the Rockwood criminal street gang. Aguilar went by the moniker "Drowzy" and Salto was known as "Menace." Aguilar woreglasses and was approximately 5 feet 5 inches tall. Salto was taller and larger than Aguilar.

On January 24, 2012, at approximately 3:00 p.m., the victim, Douglas Centeno, was walking in the area of Beverly Boulevard and Council Street, en route to see his mother. Aguilar and Salto were walking nearby. Salto rapidly approached Centeno and began arguing with him. Meanwhile, Aguilar hid behind a parked car. Salto began punching Centeno. Centeno punched back, but Salto got the upper hand in the fight. Aguilar emerged from behind the car, approached Centeno from behind, and fired a single shot at the left side of Centeno's shoulder. Centeno fell to the ground. Aguilar and Salto fled, running down a nearby alley.

Two people, Oscar Reyes and Michael Yoo, witnessed the shooting and attempted to aid Centeno, who appeared to be mortally wounded. Yoo called 911. A third witness, Francisco Gonzalez, saw the assailants run away.

(ii) The investigation

Centeno died of a single gunshot to the upper left chest. The bullet that killed him was likely fired from a nine-millimeter, semiautomatic Smith and Wesson gun.

A. Identification evidence

Reyes, Gonzalez, and Yoo all described the assailants as Hispanic. Reyes and Yoo said the shooter was thin and short and his companion (referred to at trial as "the puncher") was taller, heavier, and bald.² According to Reyes, the shooter had a round face and wore glasses.

On February 21, 2012, Reyes identified a photo of Aguilar in a 12-photo array as looking "a little bit" like the shooter; he was, however, unsure of the identification. On the same date, Yoo identified a photograph of Aguilar in a photo array as looking "most similar" to the puncher, but he was likewise unsure about the identification. On February 23, 2012, Reyes identified a photo of Salto as "look[ing] like" the puncher. Yoo did not identify Salto in a photographic array. Reyes and Yoo did not identify Aguilar as one of the assailants in court. Gonzalez did not get a good look at the assailants' faces.

B. Aguilar's statements to officers

After the shooting, detectives and patrol officers canvassed the neighborhood in an effort to find witnesses to, and information about, the shooting. Based on the information obtained, on the morning of February 2, 2012, police searched the homes of six Rockwood gang members, including Aguilar's and Salto's.

February 2, 2012 statements

Officer Shane Bua and one of the investigating officers, Detective Timo Illig, spoke with Aguilar at his apartment at approximately 6:00 a.m. on February 2, 2012. When Bua arrived, Aguilar stated, " 'I know why you're here,' " and " 'I know this is about the shooting.' " Aguilar said "Crimes" was involved in the shooting. He agreed to go to the police station to speak with detectives.

Aguilar arrived at the police station of his own volition later that morning, and Detective Illig, Detective Keyzer, and Officer Bua conducted a videotaped interview with him lasting approximately three and a half hours. Aguilar confirmed he had been a Rockwood gang member for four years. He claimed that ahigh school girl named Stephanie, later identified as Stephanie Bonilla, told him about the shooting. Stephanie said the victim — who was "an enemy" and was tall, had a shaved head, and was " 'banged out' "³ — had been walking down Beverly from the metro station; "Little Listo" punched the victim; and Francisco, known as "Timer," "popped out," came up from the side, surprising the victim, and shot him. The assailants then ran to an alley and were picked up by a car. Timer was not a Rockwood gang member and Little Listo was from a different Rockwood clique. Aguilar gave inconsistent descriptions of Little Listo and neither matched the only Little Listo known to Detective Illig. Illig was unaware of any gang member with the moniker "Timer." Eventually Aguilar changed his story and said Stephanie told him Crimes, rather than Timer, was one of the assailants.

Aguilar provided several inconsistent alibis and admitted he had asked his mother to lie and say he had been in La Puente when the shooting occurred. Eventually he admitted he had been in the neighborhood, but at a different location. He denied any involvement in the crime.

Detective Illig spoke with Bonilla. She "had no idea about any of the details" that Aguilar had provided and, in fact, had thought the crime involved "body parts that were chopped up."

February 3, 2012 statements

The next day, February 3, 2012, Detective Illig phoned Aguilar and arranged for another interview. He picked Aguilar up at Aguilar's apartment and drove him to the police station. In the interview on the preceding day, Aguilar had explained thatcuts on his hand were the result of his punching a stucco wall near his house in frustration after a discussion with his mother. As a ruse geared to test Aguilar's alibis, the detectives stopped at the wall and Illig made it appear he intended to take DNA samples from the wall. Illig also drove Aguilar past the crime scene, and Aguilar spontaneously pointed out the spot where the victim had fallen. The conversations during the drive were not recorded.

Illig then transported Aguilar to the police station.⁴ Illig collected a DNA swab from Aguilar's mouth in an attempt to "call his bluff" about his alibi. Aguilar stated his source of information about the shooting was not Bonilla after all. Instead, he had learned the details of the shooting from his mother, who heard about it from a "guy" at a carwash. Aguilar gave yet another inconsistent account of his whereabouts during the crime, and continued to deny being present at the crime scene. Using a ruse, Detective Illig presented Aguilar with a mock six-pack photographic lineup, in which a witness purportedly identified him as being at the crime scene. Aguilar continued to deny being present at the scene.

February 22, 2012 custodial statements

In a six-hour custodial interview, and after being given Miranda advisements, Aguilar confessed to shooting Centeno. We discuss the interrogation in detail where relevant, post.

C. Text messages

Aguilar made statements admitting he was the shooter in three text message conversations, while using his mother's cellular telephone. One conversation was between him and Bonilla. The other two were between him and unidentified persons.⁵

The conversation with Bonilla transpired on the afternoon of January 25, 2012. Aguilar asked if Bonilla had heard anything in school, and she replied she had heard the police were in the Westmoreland area because someone's arms and legs had been cut off. Aguilar replied that nothing like that happened, but some fool got smoked. Bonilla replied, "Damn who shot him." Aguilar told her not to "trip," and then said, "It was da one txtin u [sic]." Bonilla replied, "Yhew [sic] . . . ?" Aguilar said, "U never heard nada tho [sic]" and stated that he trusted her.

Approximately an hour earlier, Aguilar and an unidentified person discussed the police canvassing of the neighborhood. Aguilar asked whether police had "knokd [sic] in every pad or wh[a]t" and opined, "so no evidence at all clean." Aguilar asked if the message recipient "kn[e]w who got him." The recipient stated he or she had an idea. Aguilar replied, "yea alrwite [sic] is da foo[l] txtin you lol [sic]"⁶ In a text conversation between Aguilar and a third phone number late that night, Aguilar asked if the text recipient had seen the news about a...