Jesus Aguirre Jr.: Victim or Thug?

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.

CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; obtained one of the last exclusive prison interviews with Charles Manson disciple Susan Atkins; won inclusion in Jeffrey Toobin’s The Best American Crime Reporting for his coverage of a white supremacist’s senseless murder of a beloved Vietnamese refugee; launched multi-year probes that resulted in the FBI arrests and convictions of the top three ranking members of the Orange County Sheriff’s Department; and gained praise from New York Times Magazine writers for his “herculean job” exposing entrenched Southern California law enforcement corruption.

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