People v. Aguilar

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

B304568

California Court of Appeals, Second District, Fourth Division

July 2, 2021

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County, No BA054696 William C. Ryan, Judge. Affirmed.

Sally Patrone Brajevich, 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 Attorney General, David Madeo and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

CURREY, J.

INTRODUCTION

Defendant and appellant Jose Aguilar owned a construction company and agreed to retrofit multiple buildings for earthquake safety pursuant to Division 88 of the Los Angeles Building and Safety Code (“LABC”). The precast seismic anchors he installed did not comply with the LABC. Upon testing the anchors Aguilar installed, the City of Los Angeles ("the City") noted they performed so poorly that it had no choice but to require the building owners to begin having their buildings retrofitted. As a result, in 1993, the Los Angeles County District Attorney filed an information charging Aguilar with seven counts of grand theft by false pretenses, one count of conspiracy to commit grand theft by false pretenses, and one count of conspiracy to injure the public health or public morals, or to pervert or obstruct justice or the due administration of the law.

At the preliminary hearing, prosecution experts relied on the 1988 version of the LABC when testifying that the anchors Aguilar installed did not comply with the code. Defense counsel argued Aguilar should be acquitted because the Revised 1985 LABC, not the 1988 LABC, applied.^[1] The trial court allowed the prosecution to reopen and recall its experts, all of whom testified the applicable provisions of the 1985 LABC were the same as the 1988 version.

After years of litigation, Aguilar pled no contest in the middle of trial to one count of grand theft and conspiracy to commit grand theft. He later attempted to withdraw his plea, and there were further years of litigation until his motion was denied after a hearing. Throughout the proceedings related to his attempt to withdraw his plea, Aguilar contended he had not violated the 1985 LABC. The court placed Aguilar on probation in 2002.

In 2019, Aguilar filed a motion to vacate his conviction under Penal Code section 1473.7.^[2] In it, he again argued that he was convicted based on the wrong version of the code, and that the anchors he installed did not violate the 1985 LABC. As “newly discovered evidence, ” Aguilar attached excerpts of a 1992 academic paper (“Graduate Project”) authored by prosecution expert Kevin McDonnell.^[3] The Graduate Project, in part discussed changes between the 1985 and 1988 versions of the Uniform Building Code (“UBC”) as it applied to new buildings. The LABC incorporated the UBC, but also included additional, more stringent requirements, including Division 88. Based on the Graduate Project's discussion of changes in the UBC, Aguilar claimed McDonnell and others lied when they testified there were no relevant changes between the 1985 and 1988 versions of the LABC. He argued the Graduate Project proved he was innocent. Division 88 however, was unique to the LABC and was not contained in the UBC or discussed in the Graduate Project. Thus, any changes between the 1985 and 1988 versions of the UBC did not reflect changes to Division 88 of the LABC. The Graduate Project was irrelevant to Aguilar's conviction and did not support his claims of actual innocence.

While the 1473.7 motion was pending, Aguilar filed a motion to vacate under section 1473.6 based on the same “newly discovered evidence, ” as well as the same general theory of innocence. Both motions were ultimately denied-the 1473.7 motion on the merits after a statutorily-required hearing, and the 1473.6 motion on multiple procedural grounds. On appeal, Aguilar raises ten arguments why the trial court erred in denying his motions. We reject these arguments and affirm the trial court's orders.

PROCEDURAL BACKGROUND

In 1993, the Los Angeles County District Attorney filed an information charging Aguilar with seven counts of grand theft by false pretenses (§ 487; counts one through four and six through eight), one count of conspiracy to commit grand theft by false pretenses (§ 182, subd. (a)(4); count five), and one count of conspiracy to injure the public health or public morals, or to pervert or obstruct justice or the due administration of the law (§ 182, subd. (a)(5); count nine). Midway through the trial, in 1997, Aguilar pled no contest to one count of grand theft and one count of conspiracy to commit grand theft.^[4] On January 25, 2002, the trial court suspended imposition of sentence and placed Aguilar on probation for five years.

Aguilar filed a motion to withdraw the plea, alleging failure by the prosecution to disclose exculpatory evidence. The trial court denied Aguilar's motion. The court issued a certificate of probable cause nunc pro tunc. Aguilar appealed, and this court dismissed the appeal for failure to obtain a timely certificate of probable cause. (People v. Aguilar (2003) 112 Cal.App.4th 111, 113 (Aguilar).)

On January 4, 2019, Aguilar filed a motion under section 1473.7, subdivision (a)(2) to vacate his conviction due to newly discovered evidence. The prosecution filed an informal response, and Aguilar filed an answer to the prosecution's response, as well as a revised response. The trial court held a hearing, then filed a memorandum of decision denying the motion. Aguilar moved for reconsideration, which the court denied. Aguilar timely appealed.

On December 13, 2019, Aguilar filed a motion to vacate his conviction under section 1473.6, alleging false testimony and fraud by government officials. On December 17, 2019, the trial court summarily denied the motion. Aguilar filed a motion for reconsideration on January 1, 2020, which the court also denied. On January 15, 2020, Aguilar filed a request for clarification of the order. The trial issued a clarification order on January 23, 2020. Aguilar timely appealed.

FACTUAL BACKGROUND^[5]

“Aguilar was the owner of a construction company and Vale was a registered deputy inspector working on behalf of the City of Los Angeles. Aguilar undertook to upgrade a number of unreinforced buildings so as to comply with an earthquake hazard reduction ordinance passed by the City of Los Angeles. In some of the jobs, Aguilar used anchors that were not consistent with the requirements of the ordinance. In every building where these anchors were used, the same registered deputy inspector, Richard Vale, had signed the inspection certificates. During the time these subject anchors were used, Vale was the only inspector Aguilar used. Prior to this time, before the subject anchors were used, Aguilar had used a variety of inspectors. Many of the inspection certificates signed by Vale indicated continuous inspection, which would have required that he be physically present during the entire installation. The city subsequently tested the anchors and noted the anchors performed so poorly that it had no choice but to require the building owners to begin having their buildings retrofitted.” (Aguilar, supra, 112 Cal.App.4th at p. 113.)

DISCUSSION

I. Aguilar's challenges to the denial of his section 1473.7 motion

A. Aguilar was not entitled to the appointment of counsel under section 1473.7

Aguilar first argues the trial court erred by issuing an order to show cause and conducting an evidentiary hearing on Aguilar's section 1473.7, subdivision (a)(2) motion without appointing counsel. The Attorney General disagrees, arguing because the trial court did not issue an order to show cause or conclude Aguilar stated a prima facie case for relief, he was not entitled to have counsel appointed. We agree with the Attorney General.

Section 1473.7, subdivision (a)(2) provides: “A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence for any of the following reasons: [¶] Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.” The motion “shall be filed without undue delay from the date the moving party discovered, or could have discovered with the exercise of due diligence, the evidence that provides a basis for relief under this section....” (§ 1473.7, subd. (c).) A defendant filing such a motion is “entitled to a hearing” regardless of the merits of the motion. (See § 1473.7, subd. (d) [“All motions shall be entitled to a hearing.”].)

The statute was enacted in 2016 to fill a gap in California criminal procedure by providing a means to challenge a conviction when the defendant is no longer in custody and is thus ineligible to file a petition for writ of habeas corpus. (See People v. Fryhaat (2019) 35 Cal.App.5th 969, 976 (Fryhaat).) The defendant bears the burden of demonstrating entitlement to relief under section 1437.7 by a preponderance of the evidence. (People v. Perez (2020) 47 Cal.App.5th 994, 997 (Perez); § 1473.7, subd. (e)(1).)

“[N]either the federal nor the state Constitution mandates an unconditional right to counsel to pursue a collateral attack on a judgment of conviction. [Citations.]” (Fryhaat, supra, 35 Cal.App.5th at p. 980.) “Nevertheless, ‘if a postconviction petition “attacking the validity of a judgment states a prima facie case leading to issuance of an order to show cause, the appointment of counsel is demanded by due process concerns.”' [Citations.]” (Id. at pp. 980-981.) A defendant states a prima...