A defense attorney for a man sentenced to death for killing a 13-year-old boy and wounding his teenage brother and cousin because he mistakenly thought they were in a rival gang argued Wednesday before the state Supreme Court that he should have the conviction overturned based on a prosecutor’s use of the defendant’s rap lyrics in his trial.
Jason Alejandro Aguirre was sentenced to death in August 2009 for the Aug. 12, 2003, fatal shooting of Minh Tran.
The victim was out getting tacos with family in Westminster when Aguirre and several others in his gang attacked them, prosecutors said in his trial.
Attorney Carla J. Johnson also argued that the special circumstances of killing for the benefit of a gang and other gang enhancements must be dismissed based on new laws applied retroactively that require prosecutors to provide more evidence that a crime was committed for a specific benefit for a gang.
Deputy Attorney General Christopher Beesley agreed that the new law requires a new trial on the gang enhancements if prosecutors wish to pursue it.
Johnson argued that three witnesses told police that the shooter in the attack was a short, skinny Asian teenage man but her client is 6 feet tall white man, who was 28 at the time and has blond hair.
“This tall white man could never be confused with a short, Vietnamese teenager,” Johnson said.
The defense attorney said the prosecutor, Sonia Balleste, relied on “highly inflammatory” rap lyrics that portrayed the defendant as a “violent and threatening man,” which “created an emotional bias that allowed the prosecutor to convict him whether or not he did it just to get him off the streets.”
Her closing argument included nine pages of rap lyrics, Johnson said.
“Ten of her 33 pages of her closings were all about the rap lyrics,” Johnson said.
“The best evidence was Jason Aguirre himself” she argued, Johnson said.
“It didn’t matter what the witnesses said — it only mattered what he said so the whole case turned on these rap lyrics,” Johnson said.
Johnson brushed aside the fact that the witnesses who told police the shooter didn’t match the description of Aguirre when they testified at trial as they were motivated to help prosecutors, she argued.
Former Orange County Superior Court Judge William Froeberg abused his discretion by allowing the rap lyrics in as evidence, especially considering recent law on the use of rap lyrics as evidence in gang trials, Johnson said.
Johnson also attacked the “consciousness of guilt” argument that the defendant fled the state to Arizona and looked up the case against him, saying it could have been as much a demonstration that he was there that night at the shooting but was not the actual killer.
Beesley told the high court justices, “The question here is there an abuse of discretion… and the answer is no. This was evidence from Aguirre himself… This is Aguirre’s own work. It’s his own language.”
Beesley said the prosecutor at the time “not only had to prove it was a murder but she also had to prove it was a gang murder… Because the prosecutor had to prove those kinds of allegations the rap lyrics, which were Aguirre’s own words, were probative to his allegiance to his gang, his desire to promote that gang.”
Beesley argued that even if Froeberg erred “this is harmless.”
Beesley also argued that instant messages the defendant wrote also incriminated him. In those messages he discussed using a “357 to commit a 187,” referring to a caliber of gun and the criminal code for a homicide.
“The trial court was well within its discretion in admitting this evidence,” Beesley said.
The defendant also discussed “blasting three victims and wearing all black,” which matches the clothes of the killer and the details of the crime, Beesley argued.
Johnson argued that it is possible Aguirre wrote the rap lyrics before the crime. The defendant also discussed using other types of guns not used in the shooting, she added.
“The jury was out for a long time,” Johnson said. “There were all kinds of notes (from jurors) about the identity of the shooter. They had the evidence that the DNA of Eric Pham was found on the bandana (found at the crime scene that the shooter was wearing).”