By Matt Coker
By R. Scott Moxley
By Charles Lam
By Nick Schou
By Gustavo Arellano
By Gustavo Arellano
By Steve Lowery
By R. Scott Moxley
If there is a living poster face for the extraordinarily steep cost of California gang life, it's Orange County's Jesus Aguirre Jr. At the age of 16, Aguirre—a deceptively baby-faced but low-level member of the Eastside Buena Park gang—participated in the hunting down of a man and an incredibly stupid, non-fatal, shotgun shooting. Following a 2012 jury trial that found him guilty of street terrorism, assault with a firearm and attempted murder, plus five felony enhancements, the young man more concerned with achieving gangster status than focusing on 10th grade learned too late there are consequences to bad life choices.
Displaying no malice and citing the mandatory-sentencing law requirements, Superior Court Judge William R. Froeberg gave Aguirre, who was already on probation at the time of the March 2010 shooting, life in prison, plus an additional, consecutive term of 25 years to life. Having lost his freedom four years ago at his arrest, the now-20-year-old convict calls home one of the most inhospitable and dangerous spots on Earth: Pelican Bay State Prison, a 275-acre hellhole that bills itself fit for "the worst of the worst" criminals.
"It doesn't give me any great pleasure to impose this sentence on this young man," a solemn Froeberg stated to Aguirre, who showed no emotion, and his family, which was hysterical, at the sentencing hearing I was the lone journalist to attend. "Gang activity is a no-win activity. Society won't tolerate it, and I won't tolerate it."
Aguirre's gang membership—as evidenced, in part, by three tattoos, personal associations, a gang moniker, and an incriminating, surreptitious jail-cell recording—was certainly misguided. Before the shooting, police caught him with other hoodlums 26 times. But the incidents either didn't involve criminal conduct or were relatively minor offenses. For example, he was caught tagging for his gang in La Palma and, on another occasion, riding in a stolen vehicle.
Adopting the attitude of Aguirre's outraged family that hired him in the wake of the sentencing, defense lawyer William Kopeny is arguing the Buena Park case represents a mockery of justice in an aggressive, 18,900-word appeal. He's calling on the California Court of Appeal in Santa Ana to reverse the conviction and free the inmate from serving an "unconstitutionally harsh" punishment.
As with most judges in the state, the conservative-dominated appellate justices in Orange County rarely show sympathy for gangsters. They didn't originate the sentiment. In response to public outrage over gang violence, state legislatures substantially increased punishment for these offenders. A violent felony committed for the benefit of a gang is punishable by an enhancement that adds at least 10 years to a sentence that would ordinarily be imposed. If Kopeny is right, Aguirre is an unintended victim of this anti-gang backlash.
Consider, for example, from my own files, the case of Samantha Elizabeth Rothwell, who fatally stabbed an 18-year-old musician in the jugular vein without provocation at a Huntington Beach party in August 2006. As blood sprayed from her helpless victim's neck, Rothwell told shocked onlookers, "Fuck you, get over it." The then-20-year-old woman then drove to a McDonald's drive-thru and ordered two double cheeseburgers (no onions).
In contrast, nobody died in Aguirre's case. Ramon Magana, the victim—a member of a different gang—didn't press charges. Magana suffered wounds to his chest and a thigh from a shotgun firing birdshot. Though he bled and fell unconscious immediately after the shooting, he didn't need surgery. Even police acknowledge Aguirre wasn't the shooter.
Rothwell viciously killed an innocent person and got 16 years in prison.
Aguirre didn't kill anyone and may have lost his freedom forever.
"[Aguirre] was sentenced to life in prison despite the fact that the offense, personally committed by someone who was not apprehended or charged, was not even reported by the victim and despite the circumstances of the offense and [my client's] youth and relative un-involvement," a dubious Kopeny told the appellate court, even though he knows a person who actively aids and abets a would-be killer, as Aguirre did, is hardly uninvolved.
In every case, appellate justices give great weight to a jury's decision, so Kopeny concocted a strategy that offers a long-shot route to overturn the case without belittling the work of the citizens' panel. After studying the trial, Kopeny thinks he found the offending parties to this "tragedy." Of course, it's not Aguirre. He blames veteran gang prosecutor Brett Brian for misapplying the law and Froeberg for permitting the alleged errors to go uncorrected.
There is no dispute that Eastside Buena Park gangsters thought they'd been disrespected on their turf by a member of a different gang at the Walden Glen apartment complex on Knott Avenue. In response, Aguirre retrieved a loaded shotgun and handed it to the eventual shooter, and the two hooded men called for Magana, who was visiting his mother inside her apartment, to exit. When the man walked out, he was shot twice before the assailants fled.
Because Magana belonged to the Anaheim Barrio Pobre gang and that group was, at the time, on friendly terms with the Eastside Buena Park gang, Kopeny alleges his client and the shooter mistook the victim for an enemy Varrio Los Coyotes gangster. This point is key to the appeal. He says the prosecutor acknowledged the shooting was a case of mistaken identity and incorrectly applied what is known as "transferred intent" theory. In other words, Aguirre was in pursuit of an imaginary Coyotes gangster, so he had no intent to kill Magana, according to Kopeny.
"Mistaken identity is a classic form of 'transferred intent' in murder cases, but the mistake precludes conviction of attempted murder where the defendant did not intend to kill the person shot," Kopeny argued.
The defense strategy was met with contempt from Deputy California Attorney General Vincent P. LaPietra. In an 18-page responding brief, LaPeitra noted that Aguirre, who deceitfully claimed he was never at the scene of the crime, sealed his fate by his own admissions. Not knowing a bug had been planted in his cell, Aguirre told his cellmate he lied to his parents about his role, strategized about sabotaging the police investigation, and opined about the shooting, "Fuck it, dog. Those fools [Barrio Pobre gangsters] had it coming to them."
According to LaPietra, the Orange County district attorney's office didn't argue, as Kopeny claimed, a "transferred intent" theory to the jury. The Deputy AG states that the evidence shows Aguirre had intent to kill the victim. "During the recorded conversation, [the defendant] says he and [the shooter] confronted and shot Magana because they believed he was a rival gang member who had disrespected them," LaPietra wrote.
Besides, Kopeny's attempt to remove intent from his client's mind isn't new. The defendant's trial counsel, Randall Longwith, passionately argued that same notion in his closing argument. The jury didn't buy it. They sided with Brian, who asserted a gangster doesn't get a "freebie" shooting because he claims the wrong person was shot.
Kopeny has requested 10 minutes to lobby the justices at an as-yet-to-be-scheduled oral-argument hearing. If he loses, his client's fate is sealed for several decades. Aguirre then won't be able to apply for parole until he is 48 years old.
The article is so bias, so many adjectives and personal comments. Where did you study journalism? It does not surprise me that most comments are not well informed. What happened with getting the facts straight before grilling someone? All these self righteous desktop commentators. Life may surprise you someday and put your own son on the wrong side of this blind blind justice system.
"didnt press charges"
welllllll, arent YOU magnaminous
more leftists killing more leftist
you down wit dat
but save it all up for when a member outside the community , does one in,, then its rioting and no justice no peace
save your bull sheeet
He was part of a criminal conspiracy to commit murder. A very serious crime. He could have made a deal to give up the shooter. He wanted to be a tough guy and didn't. Under these circumstances we should not have to wait for him to kill someone. He was sentenced appropriately.
Hey Moxley, Ive been wondering; Have you ever been called to a trial to testify about the frequency of police officers caught pulling any shenanigans like committing exculpatory evidence and corruption by defense attorneys? I think you would probably be the best person or at least have the most complete catalogue of cases of police misconduct and corruption.
"You have a right to remain silent anything that you say can and will be used against you in a court of law". Therefore say nothing and do not talk to the police, because you do not have to because they are criminals themselves and they are being paid to be criminals and violate the laws while they are ON DUTY. Sign a non-cooperation agreement.
If the shooting victim was anyone's loved one, then the accomplices and shooter would be considered thugs. Attempted MURDER. So thug it is.
To answer the question "Victim or Thug?" I would say both. Handing someone a gun is different than pulling the trigger and I don't believe he should be held responsible for the actions of the shooter. This is not to say that I think he sounds like a good person nor would I want him living in my neighborhood but I definitely think he's received a very harsh sentence for a crime that didn't result in death and the victim didn't even want to pursue charges. I do think that he's young enough that he could turn his life around. I'll be interested to see how his appeal goes. Keep us posted!
Here's the part I've never understood: Why is it that if you attempt to kill someone, and are successful, there's one sentence, and if you attempt to kill someone and fail, there's a lesser penalty? Aren't both actions the same?
Let's see here: He provided a loaded gun and called out a guy they fully intended to kill. Because it wasn't the victim's time yet, the sentence is too harsh...
I remember this case. The sentencing seems very excessive considering no one died and he didn't even pull the trigger.
@RealBudDickman He did not shot. The guy who shot is free. He used bird shots. never heard or a murder conspiracy with bird shots. First get your facts straight
@Rabbi_Pedro_Goldstein Very deep and intelligent comment Rabbi. Are your sermons at the same level of your comments?
@hallucinogen How can you murder someone with bird shots?
Aguirre fully intended to kill someone, and the theory that he shot the wrong person is humorous! He provided the gun, he called the guy out...
Yes, it's sad that anyone would want to flush their life down the toilet. I also think that the shooter should be Aguirre's cell block partner, regardless of whether the victim wanted to prosecute.
@949girl If the Court of Appeal takes any action for a new trial in this case, it certainly won't be based on the notion of cruel and unusual punishment--especially because Judge Froeberg issued the required statutory sentence for Aguirre's conduct as determined by a jury. But also because appellate courts in California have for years upheld harsh sentences for 15 and 16-year-old gangsters engaged in violent crimes. The criminal justice system in California is trying to send a wake up call. If there's a kid out there debating whether to join a criminal gang, perhaps he should carefully review the sad, unnecessary plight of Aguirre, who may have permanently lost his freedom in the 10th grade. Or not, and risk the consequences.
@rscottmoxley @949girl Wake up call or abuse of power? The fact of the matter is the sentence IS cruel and excessive. I don't condone gang activity but the crime certainly does not fit the punishment regardless of whether or not this kid aided and abetted. And why wasn't the shooter investigated for the crime? If the system really wants to make an example out these kids then they should at least apply the law uniformly. Arrest the guy that did it. Seems to me the cops were just sinking their teeth into whoever was easiest to catch. Personally I'm pretty disgusted with the way this case turned out.
@paullucas714 @rscottmoxley @Q123 @949girl My point in mentioning rules of evidence was that unlike Aguirre, who unwittingly confessed to his role and thus handed himself a series of convictions, there is no such evidence against the shooter. Though you question whether I'm "siding with the prosecutor"--a stance I'm obviously free to do when I think he or she hasn't done anything unethical, what I'm really tackling is the notion that Aguirre was treated unusually. That belief, argued passionately by some, is not true. The punishment is certainly harsh, but there's nothing new about tough, anti-gang violence sentencing laws. Now, the question about whether a 16-year-old gangster deserves a life plus 25 years sentence in a case where nobody died certainly should be open to public debate--a reason I have extensively covered the case.
Moxley, this rules of evidence you speak of? is there an online version of evidentially rules somewhere I can download from the AG website? Ive looked and Im either not using the right query or it not published. Also, its seems to me you are siding with the prosecutors in this case. I think the case was overcharged and the sentence was too harsh.
@Q123@rscottmoxley@949girlGreat, fair question. Aguirre got charged because an initial eyewitness named him as one of the two people who lured the victim out of the his mother's apartment. And, critically, there is key fact: Aguirre repeatedly admitted his primary role in the shooting when he didn't know he was being recorded in the jail cell. That is undeniably powerful evidence. The shooter, whose identity is obviously known to police, never admitted to anything on tape. The police can't use Aguirre's tape confession against the shooter given long-established rules of evidence. In essence, Aguirre was his own worst enemy. Look at it this way: If, hypothetically, one of six bank robbers gets caught and refuses to turn in the other robbers, then the caught robber can't reasonably argue that he can't be charged because the cops can't prove involvement of the other bandits. That's an argument that won't work in the court of public opinion or actually in court.