People v. Aubrey CA1/3

Filed 11/14/22 P. v. Aubrey CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE OF THE STATE OF CALIFORNIA, A165241 Plaintiff and Respondent, v. (Humboldt County AARON AUBREY, Case Nos. CR1903760, CR1904050A) Defendant and Appellant.

On August 3, 2019, R.C. reported to Eureka police that his wallet was forcefully taken from him. On August 8, 2019, in case number CR1903760, the Humboldt County District Attorney filed a felony complaint charging Aaron Aubrey with robbery (Pen. Code, § 211)1 and a prior prison term enhancement (former § 667.5, subd. (b)). At the August 20, 2019 preliminary hearing, R.C. testified that Aubrey was not the man who robbed him, even though he had previously identified him with “99 percent” certainty in a photo lineup as the person who had taken his wallet. R.C. also acknowledged that he had been seated next to Aubrey’s girlfriend prior to the case being called. The responding officer testified about R.C.’s statements to him regarding the incident and his

1 All further statutory references are to the Penal Code unless otherwise stated.

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identification of Aubrey as the person who robbed him. The People rested, and the court recessed. During the break, the prosecutor, a District Attorney investigator, the responding officer, and another individual on the prosecution team spoke with R.C. about his testimony in a meeting which was recorded and transcribed. R.C. disclosed that Aubrey’s girlfriend had texted R.C. that if he did not want any problems, he would need to say it wasn’t Aubrey who robbed him. They would return his money if he so testified. Upon returning from the recess, the People successfully moved to reopen evidence and R.C. was recalled as a witness. R.C. identified Aubrey as the person who took his property. Asked why he was unable to make the identification earlier, he explained that he was scared, felt threatened, and did not want harm to come to him or his family. R.C. explained that Aubrey’s girlfriend instructed him to not identify Aubrey if he didn’t want any problems. R.C. assumed the message came from Aubrey. Aubrey was held to answer on the robbery charge and duly arraigned on the information filed on August 28, 2019. He plead not guilty to the robbery charge and denied the prior prison term special allegation. On August 23, 2019, in case number CR1904050A, the Humboldt County District Attorney filed a new felony complaint charging Aubrey and his girlfriend with attempting to dissuade a witness (§ 136.1, subd. (a)(2)) and a prior prison term enhancement (§ 667.5, subd. (b)). He plead not guilty to the charge and denied the special allegation as set forth in the information filed on October 30, 2019. On March 24, 2021, Aubrey moved to dismiss CR1903760 on the basis of prosecutorial misconduct and due process violations. Aubrey alleged that during the recess at the preliminary hearing the prosecution intimidated R.C.