Opinion
B304568
07-02-2021
THE PEOPLE, Plaintiff and Respondent, v. JOSE AGUILAR, Defendant and Appellant.
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.
NOT TO BE PUBLISHED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. 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.
The Revised 1985 LABC is referred to throughout this opinion simply as the 1985 LABC.
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. 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. 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.
All undesignated statutory references are to the Penal Code.
The front page of McDonnell's paper reads: “A Graduate Project submitted in partial fulfillment of the requirements for the degree of Master of Science in Structural Engineering.”
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. On January 25, 2002, the trial court suspended imposition of sentence and placed Aguilar on probation for five years.
Aguilar's codefendant, a City building inspector named Richard Vale, was also charged with the two conspiracy counts, and pled no contest to count nine.
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.
The following facts are taken from this court's 2003 opinion resolving Aguilar's direct appeal.
“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 facie case when, taking the factual allegations as true, the motion shows he or she is entitled to relief. (Id. at p. 982.) A defendant who has not set forth a prima facie case is not entitled to counsel. (Id. at 981.) “[O]therwise, ‘there would be no alternative but to require the state to appoint counsel for every prisoner who asserts that there may be some possible ground for challenging his conviction.' [Citation.]” (Ibid.)
Applying these principles, we conclude Aguilar was not entitled to counsel. Aguilar erroneously asserts the trial court issued an order to show cause. Contrary to Aguilar's assertion, the record does not show the trial court ever issued an order to show cause. The court merely stated the motion would proceed to a hearing, which is required for all such motions. (See § 1473.7, subd. (d).) In addition to never issuing an order to show cause, the court never suggested Aguilar had stated a prima face case of entitlement to relief. For these reasons, Aguilar was not entitled to counsel. (See Fryhaat, supra, 35 Cal.App.5th at pp. 980-982.)
For reasons discussed in greater detail in the sections that follow, we agree with the trial court's implicit conclusion that Aguilar did not make a prima facie showing of entitlement to relief. As mentioned above, a section 1473.7 motion must 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....” (§ 1473.7, subd. (c).) Aguilar, in filing a section 1473.7 motion presenting as new evidence a Graduate Project authored in 1992 (years before his trial and no contest plea), has failed to comply with the prohibition against undue delay articulated in subdivision (c). Additionally, the Graduate Project in no way suggests Aguilar was innocent of theft by false pretenses or conspiracy to commit theft by false pretenses. It is largely irrelevant to the merits of Aguilar's case.
B. The trial court did not abuse its discretion in granting the prosecution's motion to exclude cumulative evidence
We reject Aguilar's argument that the trial court abused its discretion by excluding additional testimony comparing the 1985 and 1988 LABCs. The discrepancies between those two codes, and how they related to Aguilar's case, had been fully litigated two previous times - at Aguilar's trial and at the hearing on his motion to withdraw his guilty plea. The trial court took judicial notice of those proceedings. As the court noted, there had already been “[a]t least 40 days of testimony on that issue.” The court was well within its discretion to exclude additional testimony comparing the two code versions on the grounds that it was cumulative and would necessitate undue consumption of time. (See People v. Lee (2011) 51 Cal.4th 620, 643 [abuse of discretion standard of review applies]; Evid. Code, § 352 [“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will... necessitate undue consumption of time....”].)
The court stated: “[Aguilar] cannot now relitigate for a third time the differences between the revised 1985 LABC and the 1988 LABC or whether his work complied with one or the other or both. At least 40 days of testimony has been previously presented applying and comparing the 1985 and 1988 versions of the LABC and it would be unduly burdensome for the court to allow [Aguilar] to re-present the same. The People's motion to exclude testimony about the applicability and comparisons of the 1985 and 1988 LABCs is GRANTED.”
Even assuming the court had abused its discretion, we would find the error harmless. It is not reasonably probable the inclusion of additional evidence comparing the two code versions would have resulted in a more favorable outcome for Aguilar. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Nothing about McDonnell's 1992 Graduate Project suggested Aguilar was innocent. Furthermore, McDonnell testified at Aguilar's section 1473.7 hearing that there was no difference between the 1985 and 1988 LABCs with regard to the allowable value of the anchors. This testimony further refuted Aguilar's tenuous claim that McDonnell's Graduate Project in any way demonstrated Aguilar was innocent.
He also submitted a declaration stating his 1992 Graduate Project “has no relevance to Mr. Aguilar's [section 1473.7] claim....” McDonnell had already offered testimony to this same effect at Aguilar's original trial.
Aguilar also suggests the court erred in excluding evidence or argument related to a claim that his due process rights were violated by the information's failure to designate which LABC section he violated. We disagree. The court was correct in concluding Aguilar's due process claim does not fall within the purview of section 1473.7, which pertains only to motions to vacate based on certain types of claims, such as newly discovered evidence of actual innocence, or prejudicial error damaging the moving party's ability to understand, defend against, or accept the adverse immigration consequences of a guilty plea. (See § 1473.7, subd. (a).)
C. The trial court did not err in concluding McDonnell's 1992 Graduate Project could have been discovered earlier with reasonable diligence
We likewise reject Aguilar's contention that the trial court erred by concluding McDonnell's 1992 Graduate Project could have been discovered earlier with reasonable diligence. As discussed above, section 1473.7, subdivision (c) provides: “A motion pursuant to paragraph (2) or (3) of subdivision (a) 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....” (Italics added.) This language is dispositive here. McDonnell wrote his paper in 1992, before Aguilar's trial. As the trial court explained, “[i]ndeed, the 1992 [G]raduate [P]roject was authored by McDonnell prior to defendant being charged in 1993, prior to his pleading in 1997, and prior to his moving to withdraw his plea in 1999.” As the court further explained in its order denying Aguilar's motion: “While [Aguilar] does not allege when he discovered the evidence in question, the court notes [Aguilar] filed the instant motion two years and three days after the remedy became available to him [through the enactment of section 1473.7]. [Aguilar] also has not alleged in his papers nor at the evidentiary hearing that the evidence could not have been discovered with the exercise of due diligence.” The court additionally noted: “it is also a possibility that either one, or both, of [Aguilar's] attorneys did diligently investigate McDonnell's professional and academic background, found the graduate project, yet determined it was not helpful to [Aguilar's] defense.” For these reasons, Aguilar failed to satisfy his burden of proving he could not have discovered the Graduate Project with the exercise of due diligence. (See § 1473.7, subds. (c), (e)(1).)
We review the court's conclusion for abuse of discretion. (Perez, supra, 47 Cal.App.5th at pp. 997-998.)
Even assuming the trial court had abused its discretion, the error would have been harmless. The court reached the merits of Aguilar's claim and correctly concluded the Graduate Project did not prove or in any way support his contention of actual innocence.
D. The trial court did not abuse its discretion in concluding Aguilar failed to meet his burden of proving actual innocence
For the reasons set forth above, we reject the assertion that the trial court erred in concluding Aguilar did not meet his burden of proving actual innocence. It bears repeating: nothing about McDonnell's 1992 Graduate Project suggested Aguilar was innocent. McDonnell submitted a declaration stating his 1992 Graduate Project “has no relevance to Mr. Aguilar's [section 1473.7] claim because [his] testimony focused on seismic retrofitting of unreinforced masonry buildings.” McDonnell also testified at Aguilar's section 1473.7 hearing that there was no difference between the 1985 and 1988 LABCs with regard to the allowable value of the anchors. McDonnell's testimony and declaration defeated Aguilar's unsubstantiated contention that the Graduate Project demonstrated he was innocent. The trial court did not abuse its discretion. (See Perez, supra, 47 Cal.App.5th at pp. 997-998.)
II. Aguilar's challenges to the denial of his section 1473.6 motion
A. Aguilar was not entitled to the appointment of counsel under section 1473.6
Aguilar next contends he had a right to the appointment of counsel on his 1473.6 motion, which the court violated when it summarily dismissed the motion. The Attorney General argues Aguilar was not entitled to counsel because he did not state a prima facie claim of entitlement to relief. We agree with the Attorney General.
1. Background
On December 13, 2019, just days before his section 1473.7 hearing was scheduled, Aguilar filed a motion under section 1473.6 to vacate his conviction, again presenting McDonnell's Graduate Project as newly discovered evidence. The motion alleged the prosecutor and multiple witnesses, including McDonnell, fabricated evidence and committed fraud by relying on McDonnell's assertion below that there was “no difference” between the 1985 and 1988 LABCs, whereas his Graduate Project stated there was a difference. Aguilar further alleged that because the LABCs were different, he had not violated the 1985 LABC, and without a code violation he could not be guilty. His motion stated: “I represent to the court that all I need to show to prove my innocence based on the ‘no difference' standard set by [the] prosecutor [ ] is that there was a difference between the codes.”
The 1473.6 motion stated the evidence could not have been discovered before Aguilar's conviction because the prosecutor failed to turn it over in violation of Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed. 215]. It alleged McDonnell's superiors at the Los Angeles Department of Building and Safety had endorsed the Graduate Project, and thus had a duty to turn it over as exculpatory evidence. The motion stated Aguilar was informed of the Graduate Project on December 18, 2018, and that his motion was filed within the one-year time limit. Aguilar requested that counsel be appointed.
The court issued a written decision denying the motion on three grounds: (1) it was not verified; (2) it did not allege facts showing why the “allegedly new evidence could not have been discovered with reasonable diligence prior to judgment;” and (3) Aguilar relied on the same new evidence presented in his section 1473.7 motion, making the section 1473.6 motion successive.
Aguilar filed a motion for reconsideration in which he asserted he learned of the existence of section 1473.7 at the end of 2018 and received a copy of the Graduate Project on January 2, 2019. He further asserted one of his attorneys “did not do any investigation whatsoever, ” thus preventing him from discovering the document before judgment, and that the prosecution prevented him from personally investigating the matter. The court denied the motion for reconsideration. Aguilar filed a motion for clarification, and the court reiterated the procedural grounds on which it had denied the motion.
Section 1473.6 permits a person no longer in custody to move to vacate a judgment for any of three specified reasons: “(1) Newly discovered evidence of fraud by a government official that completely undermines the prosecution's case, is conclusive, and points unerringly to his or her innocence[;] ¶ (2) Newly discovered evidence that a government official testified falsely at the trial that resulted in the conviction and that the testimony of the government official was substantially probative on the issue of guilt or punishment[;] ¶ [or] (3) Newly discovered evidence of misconduct by a government official committed in the underlying case that resulted in fabrication of evidence that was substantially material and probative on the issue of guilt or punishment....” (§ 1473.6, subd. (a)(1)-(3).)
The statute defines “newly discovered evidence” as “evidence that could not have been discovered with reasonable diligence prior to judgment.” (§ 1473.6, subd. (b).) The new evidence must cast “‘fundamental doubt on the accuracy and reliability of the proceedings'” so as to “undermine the entire prosecution case and point unerringly to innocence or reduced culpability. [Citations.]” (In re Hardy (2007) 41 Cal.4th 977, 1016.) The deadline for filing a motion under section 1473.6 is “within one year of... [¶] [t]he date the moving party discovered, or could have discovered with the exercise of due diligence, additional evidence of the misconduct or fraud by a government official beyond the moving party's personal knowledge.” (§ 1473.6, subd. (d)(1).) “The procedure for bringing and adjudicating a motion under this section, including the burden of producing evidence and the burden of proof, shall be the same as for prosecuting a writ of habeas corpus.” (§ 1473.6, subd. (c).) Accordingly, counsel need only be appointed once an indigent defendant has established a prima facie case for relief. (See Fryhaat, supra, 35 Cal.App.5th at p. 983, fn. 5.)
“The legislation was originally introduced to address a problem illustrated by the so-called Rampart scandal [citation] in which it was discovered that certain Los Angeles Police Department officers had engaged in misconduct, including planting evidence, filing false police reports, committing perjury, and creating nonexistent confessions. [Citations.]” (People v. Wagner (2016) 2 Cal.App.5th 774, 778.) “Because the misconduct was discovered many years after it occurred, those who were no longer in custody at the time of the discovery of the misconduct would not be able to set aside their convictions. [Citations.]” (Ibid.) “The original proposed legislation provided relief to those not in custody similar to the relief available to those in custody who could seek a writ of habeas corpus. [Citation.]” (People v. Germany (2005) 133 Cal.App.4th 784, 791.) However, “[t]he bill was amended to restrict the right to vacate a judgment so that the circumstances authorizing such relief were substantially narrower than for habeas corpus relief....” (Id. at pp. 791-792.) Because any newly discovered evidence of innocence must fall within the three specified categories, a motion under this section is more restrictive than a section 1473.7 motion. (Fryhaat, supra, 35 Cal.App.5th at p. 983, fn. 5.)
3. Aguilar was not entitled to counsel because he did not state a prima facie case for relief
Aguilar did not establish a prima facie case for relief. McDonnell's Graduate Project in no way established the statutory requirements of fraud, false testimony, misconduct, or innocence. (See § 1473.6, subd. (a)(1)-(3).) The motion also did not show the 1992 Graduate Project “could not have been discovered with reasonable diligence prior to judgment.” (§ 1473.6, subd. (b).) Because Aguilar did not establish a prima facie case for relief, he was not entitled to the appointment of counsel. (See Fryhaat, supra, 35 Cal.App.5th at p. 983, fn. 5.)
B. The trial court did not abuse its discretion in denying Aguilar's 1473.6 motion as unverified
We reject Aguilar's contention that the trial court abused its discretion in denying his 1473.6 motion for being unverified. “The procedure for bringing and adjudicating a motion under [section 1473.6]... [is] the same as for prosecuting a writ of habeas corpus.” (§ 1473.6, subd. (c).) Section 1474 requires that the habeas petition “be verified by the oath or affirmation of the party making the application.” (See People v. Manson (1976) 61 Cal.App.3d 102, 169 [habeas petition may be rejected solely because of absence of verification]; see also People v. Madaris (1981) 122 Cal.App.3d 234, 242, overruled on another ground in People v. Barrick (1982) 33 Cal.3d 115, 126 [“It has long been the rule of California that factual allegations on which a petition for habeas corpus are based must be ‘in such form that perjury may be assigned upon the allegations if they are false.' [Citation.]”].) The court did not err by denying Aguilar's motion as unverified.
We reject Aguilar's contention that he was not required to verify his motion because section 1473.6 makes no mention of a verification requirement. Section 1473.6 states the procedures for bringing a motion under that section are the same as for habeas corpus proceedings. (§ 1473.6, subd. (c).) Section 1474 requires habeas corpus petitions to be verified. We also reject Aguilar's argument that the verification requirement is not a “procedure” as that term is used in subdivision (c). It most certainly is.
Nor are we persuaded by Aguilar's contention that he substantially complied with the verification requirement by signing the motion. (See, e.g., People v. McCarthy (1986) 176 Cal.App.3d 593, 596-597 [concluding habeas petition was insufficiently verified where attorney stated, “‘I know the contents of the petition, which contents I believe to be true. I declare under penalty of perjury that the foregoing is true and correct.'”].)
Even assuming the trial court erred by denying Aguilar's motion as unverified, we would find the error harmless because, as discussed in the sections that follow, the court's other bases for denying the motion were proper.
C. The trial court did not err by denying the section 1473.6 motion as untimely
Section 1473.6, subdivision (b) defines “‘newly discovered evidence'” as “evidence that could not have been discovered with reasonable diligence prior to judgment.” Subdivision (d)(1) of section 1473.6 requires the motion to be filed within one year of the “date the moving party discovered, or could have discovered with the exercise of due diligence, ” the additional evidence. The defendant bears the burden of proving absence of substantial delay, good cause for the delay, or an exception to the timeliness requirement. (In re Robbins (1998) 18 Cal.4th 770, 780 (Robbins).) The motion must allege facts showing why the evidence could not have been discovered with reasonable diligence prior to judgement. (In re Reno (2012) 55 Cal.4th 428, 458, fn. 15 (Reno).)
Aguilar's motion does not satisfy these requirements. McDonnell wrote his Graduate Project in 1992, long before Aguilar pled no contest and was placed on probation. On appeal, Aguilar asserts the prosecution controlled his access to documents in the Building and Safety Department and thereby prevented him from discovering the Graduate Project. This argument, however, is based primarily on documents Aguilar presented in his motion for reconsideration, not in the original section 1473.6 motion. For this reason alone, it is not a valid basis to find the absence of substantial delay. (See Reno, supra, 55 Cal.4th at p. 459 [“justification for raising a claim must be stated in the petition itself and not in later pleadings”]; id. at p. 458, fn. 15 [habeas petition is defective if it “fail[s] to allege facts showing why allegedly new evidence ‘“could not have been discovered with reasonable diligence prior to judgment”' [Citations]”]; ibid. [“the petition, not the informal reply or traverse, must include specific allegations indicating why a seemingly applicable procedural bar does not apply....”].)
Even if considered, however, Aguilar's allegations do not justify his failure to discover the Graduate Project until 2018. There is no evidence the Graduate Project was ever in the possession of either the Building and Safety Department or the District Attorney's Office. Aguilar does not state how or where he located the Graduate Project. Aguilar's implication that it was possessed or “endorsed” by the Building and Safety Department is based on a general acknowledgment at the end of the Graduate Project thanking a Department employee for encouragement and time in exploring structural engineering. The acknowledgment does not show or even suggest that anyone in the Building and Safety Department possessed, endorsed, or assisted in the Graduate Project.
Additionally, although Aguilar claims he had restricted access to Building and Safety Department records during the pendency of his case, he does not present any evidence that such restrictions continued after his sentencing. Aguilar was convicted in 1997 and sentenced in 2002. He provides no explanation for why he did not discover the Graduate Project between 2002 and 2018. In short, the trial court did not err by concluding Aguilar's motion was untimely.
It is also worth noting that, as discussed throughout this opinion, McDonnell's Graduate Project was irrelevant to the charges against Aguilar, did not undermine McDonnell's testimony or the case against Aguilar, and was thus neither material nor exculpatory.
We reach this conclusion regardless of whether the applicable standard of review is de novo or abuse of discretion.
D. Aguilar's argument that his section 1473.6 claim should be addressed on the merits
Aguilar next argues that, even assuming there was no good cause for the delay in filing his 1473.6 motion, it should still be addressed on the merits. In support of this contention, Aguilar notes that, in the habeas context, a claim brought with an unreasonable delay may still be addressed on the merits if: (1) the petitioner is factually innocent of the crime, or (2) an “error of constitutional magnitude led to a trial so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner[.]” (Robbins, supra, 18 Cal.4th at p. 780.) Aguilar argues both exceptions apply to him. The Attorney General argues the exceptions Aguilar cites to do not apply in the context of section 1473.6 motions. The Attorney General further contends that, even assuming the exceptions apply to section 1473.6 motions, Aguilar has not shown actual innocence or a constitutional error that led to a fundamentally unfair trial.
We need not decide whether the exceptions Aguilar cites to apply to motions brought under section 1473.6. Even assuming they do apply, for the reasons discussed throughout this opinion, McDonnell's Graduate Project does not show Aguilar's actual innocence or a fundamentally unfair trial stemming from constitutional error. Aguilar has not shown the Graduate Project was in any way relevant to his case, let alone that it established his actual innocence or any basis for relief under section 1473.6.
E. The trial court did not abuse its discretion by failing to conduct an evidentiary hearing on Aguilar's section 1473.6 motion
We also reject Aguilar's contention that the trial court abused its discretion by not conducting an evidentiary hearing on his section 1473.6 motion. The premise of Aguilar's argument is he stated a prima facie case for relief. We are not persuaded. As discussed above in relation to several of the arguments Aguilar has raised on appeal, he has not shown the Graduate Project was in any way relevant to his case. It follows logically that he has not made a prima facie showing of entitlement to relief under section 1473.6.
F. The trial court did not abuse its discretion in denying Aguilar's section 1473.6 motion as successive
In denying Aguilar's section 1473.6 motion, the court concluded it was successive because it presented the same exhibit as his 1473.7 motion and “[r]epititious presentation of claims is not permitted.” Aguilar contends the court's ruling was an abuse of discretion. We disagree. The court held a section 1473.7 hearing on whether McDonnell's Graduate Project provided a sufficient basis to vacate Aguilar's convictions. The court denied the 1473.7 motion, concluding, among other things, “[t]he offered evidence of actual innocence asserted in [Aguilar's] motion to vacate is plainly irrelevant to his conviction.” Although sections 1473.6 and 1473.7 offer different vehicles to challenge a wrongful judgment, it is clear that Aguilar's section 1473.7 motion and hearing allowed him to thoroughly litigate his claim that the Graduate Project was an adequate basis for vacating his convictions. The trial court was therefore correct in denying his section 1473.6 motion as successive.
We reject Aguilar's argument that his motion should not have been denied as successive because section 1473.6 was a change in the law, warranting an exception to the rule barring successive petitions. Section 1473.6 was enacted in 2002, long before Aguilar's 1473.7 motion was filed. We likewise reject Aguilar's arguments that he should receive relief from the rule barring successive petitions because of interference by government officials or ineffective assistance of counsel. As discussed throughout this opinion, Aguilar has made no showing that McDonnell's Graduate Project was relevant to his convictions. It follows that he has likewise not shown interference by government officials or that he received ineffective assistance of counsel at any stage of the proceedings. Aguilar was afforded a fair and thorough opportunity to litigate the relevance of McDonnell's Graduate Project at his section 1473.7 hearing. He was not entitled to a second bite of the apple.
DISPOSITION
The trial court provided Aguilar a fair hearing on his claim that the Graduate Project proved his innocence or otherwise undermined the validity of convictions. The bases on which the trial court denied his motions were legally correct. The orders denying the motions are affirmed.
We concur: WILLHITE, Acting P.J., COLLINS, J.